LIRARY 
to THE 13 
BNIVERSITY ( F fl ING 


SUPREME COURT OF THE UNITED STATES 


Octoper Term, 1914. 


ORS 


No. 4—ORrIGINAL. 


STATE OF NORTH CAROLINA, 


CoMPLAINANT, 
US. 


STATE OF TENNESSEE, 


DEFENDANT. 


In Eautry. 


Abstract and Analysis of Evidence in the Record Prepared 
by the State of North Carolina. 


Tuomas W. Bicxert, 
Attorney General of North Carolina. 
THeo. FI. Davipson, 
C. B, Matrruews, 


Of Counsel. 


PAGE 

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GNIVERSITY OF ILLINOES 
15 JANI9IS 


INDEX 


Tradition. 

Defendant’s witnesses: | 
Carringer, Wm. R. “25.4200 a ee 
Cline, A. D. .02 3A. See 
Debity, Emerson 222-13 2 eee 
Debity; John. 2 ee ee 
Farr, James: 222..c..-.. ah 
Henry, Pleas (2%... ee 
Howard, John Hove. 22S eee Pines. 
McCroskey, "T.)E. H .ae 
McMurray, Boyd |... 412.2 Se 
Miller, H. (Hits Ae ee ee Se 
Nelson; James Gy 7.2052...) 
Nichols,’ ‘Bi R. ante ee 
Stratton, J qbn Wi 223 

Williams, A. Goose oe) ee 
Williams, Milton. 220) eee ee Se a 
Williams, Onley ... 22) ee 

Complainant’s expert testimony. 
Witnesses : : 
Bogle; J. G. Mw ne ee ee ee 
Burns, DD. Bitca doe eat eet 
Carver, Reuben’. 32.5242 ee ee 
Chambers, W. (P25 eee 
Collett, Bi Wilks ee eee 
Crisp, J ames 2.2 
Gannet, Si8i 2 Fee Mig eee 5 
Hays, HS. 3.2228 ae ee 
Hyde, H. Po cio eee 
Lovingood, Francs Hist 
Slagel;‘Gr Li. 2h ee ee 
Defendant’s expert testimony. : 
Witnesses: . 
Hale, We Do ee eee 
Kent,’ HH. M. vine See ee ma 
MeNab, Cv Be So 
Muller; OW? 22.522 ae a 
Williams, John (Lie 
Williams, Onley 2. 22.4252 2 Bs 
Wilson, J. Eso hc 2 ee 


il 


iatcver Cou RA, So 4, cru feeree eg Wa. 


‘Junenser sits d) de Lan Bere \ W aquly, 
) l | 
Otek ond OWS ane NG of | ak LAN eee ss 


a es mere at ‘ prcparcal hy TL Sota. 
r Bee ry Oates 


\\ \ 
V 


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PER TN Me gh ey g get ig cece eee A, TARR Riese aca BN nda BP Oe IS OO oe Nc CERES nee Ce 
UNIVERSITY OF ILLINOIS LIBRARY 


PAGE 


veal Nottm OMA IRs 029613 11.6): ieee a 96 
GET COUT GTi] a | aed ee ape 102 
CONTR US © IR Sen 107 
USES IGT CVE-S 0 01) 000) al a ea 113 
Davenport notes .................-.-. NEA hy oe lh ae 133 
“ce (alesse oe a ae ede a 138 
DS TASES eagle ts ie ee ee 148 
FERMION fon con ape econ. Se ee 161 


il 


SUPREME COURT OF THE UNITED STATES 


OcrosBer TrRmM, 1914. 


No. 4—ORIGINAL. 


STATE OF NORTH CAROLINA 


CoMPLAINANT, 


5 


U. 
STATE OF TENNESSEE, 


DEFENDANT. 


In Eegurry. 


Abstract and Analysis of Evidence in the Record Prepared 
by the State of North Carolina. 


The complainant offered in evidence the Act of 1819 of 
the North Carolina Assembly and the Act of 1820 of the 
State of Tennessee (Record, 81, 82, 83), out of which act 
grew the appointment of the joint commission who ran the 
State line at the disputed points in 1821. | 


The first Act, Section 2, provides as follows. 


“And this State will at all times ratify and confirm 
all and whatsoever the said Commissioners, or a ma- 
jority of those of each State shall do in and touching 
{he premises binding on this State.” 


The Tennessee Act, Section 3, provides that: 


“Whatsoever the said Commissioners; or a ma- 
jority of those of each State shall do in and touching 
the premises, shall be binding on this State.” 


So that it was apparently present in the minds of the re- 
spective legislatures that nothing in the Cession Act, nor 1m 
the Acts providing for the appointment of these commission- 
ers, was definite enough to make the action of the Commis- 
sioners merely ministerial and that there was some discre- 
tion and room for difference of opinion with reference to the 
duties which they would be called upon to perform. 

The report of the Commissioners of 1821 (Record, 83) 
was next introduced, and it is advisable to draw the atten- 
tion of the Court to portions of the language in that report. 
They recite that: 


“Having met at the Town of Newport in the State 
of Tennessee, on the 16th day of July, 1821, to settle, 
run and mark the dividing line between the States 
from the termination of the line run by McDowell, 
Vance & Matthews, in the year of our Lord, 1799, to 
the southern boundary of the said States, respecttully 
report that we proceeded to ascertain, run and mark 
the said dividing line as designated in the 11th article 
‘alled The Declaration of Rights of the Constitution 
of the State of Tennessee and in the Act of the General 
Assembly of the State of North Carolina, entitled ‘An 
Act for the purpose of ceding to the United States of 
America certain western lands thereon described,’ 
passed in 1789.” 


In reference to crossing the Tennessee River this language 
is used : 


“And crossing the Tennessee River at sixty-five 
miles from the beginning. From the Tennessee River 
to the main ridge and along the extreme height of the 
same where it is called Unicoy or Unaka Mountain, 
striking the old trading path leading from the Valley 
Towns to the Over-Hill Towns, near the head of the 
west fork of the Tellico River and at the distance of 
ninety-three miles from the beginning. Thence along 
the extreme height of the Unicoy or Unaka Mountain 
to the Southwest end thereof at the Unicoy or Unake 
Turnpike Road where a corner-stone is set up marked 
‘Ten,’ on the west side and ‘N. C.,’ on the East side, 


Where a hickory is also marked on the south side 
“Ten. 101m.’, and on the north side ‘N. C. 101m’, 
being 101 miles from our beginning,” ete. 


And further, 


“The said dividing line run by us in its whole length 
is distinctly marked with two chops and a blaze on 
each fore and aft tree, and three chops on each side 
line tree, and mile marked at the end of each mile; 
agreeably to the plats which accompany this report, 
and which said plats and reports are certified by us in 
duplicate, one for each of said States,” ete. 


On page 86 there is an admission by the respective parties 
that upon search of the public office of the Capitol in Raleigh, 
- thoroughly made by the proper officials, no original or copy 
of the plat and survey of the Commissioners, or the field notes 
of the same, could be found. 

The complainant next introduced the Acts of North Caro- 
lina and Tennessee confirming the said report and survey 
(Record, 86, 87). In-the North Carolina Act, in Section 1, 
these words are used: 


“The whole distinctly marked with two chops and a 
blaze on each fore and aft tree and three chops on each 
side line tree, and mile marked at the end of each 
mile.” 


Next is introduced a plat of a partion of the Ocoee Land 
District, situated in the State of Tennessee and including 
Monroe County, and in fact extending to the Georgia State 
line, which was made in pursuance of an Act of the General 
Assembly of the State of Tennessee, authorizing and direct- 
ing the Surveyor General of that land district to plat the 
district, in which it is shown at the point in dispute and im- 
mediately southwest of the Tennessee River that the Surveyor 
General ended his survey at Slick Rock Creek, and in making 
his sections, made fractional sections along that creek. 

In 1852 (Record, 89) an entry-taker’s office was established 
by the State of North Carolina, in the county of Cherokee, 
which, up to 1872, ineluded the lands constituting the present 


4 


county of Graham, through a portion of which the Shck Rock 
Creek runs. 

Thereupon, taking the complainant’s evidence in regular 
order there were introduced, commencing Record, 89, a 
large number of entries beginning with the 12th of March, 
1853, and surveys and field notes of one J. W. C. Piercey, 
who was County Surveyor of Cherokee County at that period, 
and afterwards in connection with these entries and grants, a 
certain plat of entry No. 1035, a portion of which was in 
dispute in what was known as the case of Hebard v. Beldmg. 
These entries, surveys and grants are numerous and relate 
to the lands along Slick Rock Creek and also on the waters 
of the Tellico Ricer constituting the two disputed portions of 
the State line, and take up that portion of the record from 
page 89 to 154. With reference to this, while it is true that 
it does not settle the matter for want of contending parties to’ 
make claims as to the location of the State line, yet it does 
show that as far back as the inception of the dealing with 
these lands by the State of North Carolina, it was understood 
evidently from common report and probably from knowledge 
that the State line was located as is claimed by the State of 
North Carolina, to wit: up the Slick Rock Creek and thence 
up to the Big Fodderstack, and from there to the junction, 
and .below crossing the Tellico River and not going around 
its head. When we add to this the facts that the entries and 
grants of the lands in the neighborhood of Slick Rock Creek 
and in Monroe County, Tennessee, while they do not in ex- 
press terms mention the Slick Rock Creek as the Eastern 
boundary line, do make the conveyances in grants with the 
fractional sections of the plat of the Ocoee Land District, 
and when we further consider the plat itself, which was an 
official document agreeing with the evidence, whatever its 
strength may be, with the North Carolina entries, surveys 
and grants, the evidence becomes cogent with reference to the 
location of the State line. 

Judge Clark, in the case of Hebard v. Belding, heretofore 
mentioned, and in his opinion confirming the master’s report 
in that case, savs that a different question would arise if the 
State of Tennessee could be estopped. In that case the evi- 


dence was not introduced for the purpose of creating an 
estoppel. The reason why the State could not be estopped 
is that it is sovereign and can not be sued without its own 
consent, but if it should consent to be sued, we take it that 
the ordinary rule governing the ascertainment of rights 
would prevail as in the case of individuals. 

In this case, where the Constitution of the United States 
gives this Court jurisdiction original in its nature, a state 
may be estopped. But, be that as it may, the evidence of the 
concurrent acts of the two states in reference to the location 
ot the line if it points to the same location, would be strong. 


OCOEE LAND DISTRICT SURVEY. 


The State of Tennessee caused the Ocoee Land District to 
be surveyed about 1836, only fifteen years after the line was 
located in 1821, and at a time when presumably many, if 
not all, of the persons concerned in that location were alive 
and when presumably the report, map and field notes were 
in existence and accessible, and therefore with this strong 
correspondence of the authorities of both States and coneur- 
rent action thereon, the presumption would be almost irre- 
sistible that it was known at that time, especially to the 
authorities of Tennessee, that the Slick Rock Creek for a cer- 
tain distance was the dividing line. 


PHILLIPS’ TESTIMONY. 


The complainant then introduced sundry witnesses, who 
testified as to the tradition from a time long since elapsed 
(commencing Record, page 155). The first witness in that 
line of testimony was N. G. Phillips, a resident of North 
Carolina, seventy-nine years of age. He testified that Gra- 
ham County was cut off from Cherokee County in 1872, and 
that he was well acquainted with one Thomas C. Tatham, 
who at that time had been dead for about forty years; that in 
about 1852 or 1853, in the presence of one Captain Steve 
Whitaker, Tatham talked about the State line between North 
Carolina and Tennessee, and stated that he was with the 
Commissioners who ran the line; Whitaker was desirous of 


6 


entering some land and it was important to him to know 
where that State line was located. -Tatham stated in that in-. 
terview that the line ran up Slick Rock Creek for about four 
miles and then ran up a ridge between two prongs of the 
Creek, and that the Commissioners had come down to the 
river and could not get across the river and located a big 
spruce pine tree at the mouth of Slick Rock Creek, and that 
after going up the spur they reached Fodderstack. He also 
states that Piercey, the County Surveyor, was told the same 
thing by Tatham, at a time when he, the witness, was present. 
He also testifies that he heard Steve Whitaker, a prominent 
man in that section and at one time a member of the Legis- 
lature, state the same thing, and in 1853 or 1854, heard one 
Doctor Patten say the same thing, and that the general repu- 
tation was that Slick Rock Creek was the dividing line and 
that no other talk was commenced until about 1892, or fifteen 
years ago as he expressed it. That when Graham County 
was laid off from Cherokee, he, the witness, ran the line for 
the County Commissioners, and treated Slick Rock Creek 
and the ridge up to Fodderstack as the line, and that he, in 
1874 or 1875, divided the county into townships, running to 
that creek, and that Graham County always exercised juris- 
diction over the territory up to that creek. 


JENKINS’ TESTIMONY. 


Next, William Jenkins, who stated that he was seventy 
years old, and lived in Murphy, North Carolina; that when 
a young man he knew one Foster, who was then thirty-five or 
forty years of age, and who is since dead, and that Foster 
told him that he was with the party that ran the line and de- 
seribed it as in the same locality, and furthermore, that 
below they went along the State Ridge and crossed the Tellico 
River. He then continues that on that line as located that he 
had seen the State line marks, both fore and aft and side line 
marks, and that he had seen (Record, 167) the spruce pine 
about twenty yards from the mouth of the creek, and that he 
was there as far back as 1859, and that these marks were old 
marks when he saw them. 


t 


The evidence that this witness saw the pine tree at the 
mouth of Slick Rock Creek is very important, because in the 
recent survey it was evident that that tree had been destroyed 
by a storm and could not be identified unless a tree which 
was lying upon the ground was the one. 


DAVID A. HYDE’S TESTIMONY. 


David A. Hyde (Record, 169), who states that he is 
seventy-five vears of age, living in Graham County, North 
Carolina, says that he knew J. W. C. Piercey, who was for 
quite a while surveyor of Cherokee County, North Carolina, 
and that he also knew Thomas Tatham and was present at a 
talk between Piercev and Tatham. This talk was about the 
State line between Tennessee and North Carolina. Piercey 
was inquiring about the State line and Tatham said it com- 
menced at Slick Rock Creek and ran up the creek with the 
main divides of the mountain and ran thence to the main top 
of Fodderstack, and that Tatham said that he was with the 
Commissioners who ran the line in 1821 and they gave the 
name of Big Fodderstack to that range. This conversation 
was in 1855. 


Wer COOP SHS TIMONY. 


N. I. Cooper, also a resident of Graham County, North 
Carolina, since 1838, and at the time of the taking of this 
deposition was eighty-two years of age, says that in 1853 or 
1854 he was in Murphy, Graham County, and had a conver- 
sation with Doctor J. W. Patten, Dr. J. M. Lyle, and an old 
gentleman by the name of J. J. Turnbill. That in the con- 
versation with them it appeared that Dr. Lyle had made an 
entry there and Piercey had surveyed it; that these men 
were all dead, and they stated that the line crossed the Ten- 
nessee River at the mouth of Slick Rock Creek, and that 
they found a tree there, a fore and aft tree, and that Piercey 
always told him the same. 


ROPETWISTER’S TESTIMONY. 


topetwister, a Cherokee Indian, who said he was seventy- 
eight vears of age (Record, 174), but W. P. Taylor, who had 


8 


lived in Cherokee County, North Carolina, but was then liv- 
ing in Oklahoma, eighty-three years of age, says (Record, 
189) that he saw Ropetwister in 1835 and that he was then 
a big, stout Indian and a fine ball player. Ropetwister says 
that Cheowah River was known by that name when he was a 
boy, and that he also knew Shek Rock Creek, and that his 
father told him a number of times that the State line crossed 
the Tennessee River at the mouth of Slick Rock Creek, and 
that he said that the Commissioners went on to the Smoky 
Mountain and went to a thicket, which they could not get 
through. They hung up a flag there and as they went on they 
set up a rock about three feet high on the side of a trail in 
the direction of Ball Play. He said after coming to the 
thicket they could not get through, and they came back to the 
mouth of Slick Rock Creek and went on the line towards 
Georgia. That a man by the name of Organder had pulled 
this rock up. That the line ran along with the Creek and 
that the line was marked. 


WM. WILLIAMS’ TESTIMONY. 


William Williams, who lived in Monroe County, Tennes- 
see, and who well knew the Slick Rock territory and was_ 
seventy-seven years old, says that his father who died in 55 
or °56, told him that the line ran up Slick Rock Creek to 
the forks of the creek and then up to Big Stack (Record, 
178), which he says below is Big Fodder Stack, and from 
there on to Unaka and that the line was never in dispute 
until about fifteen years ago, and that Bill Deputy, who is a 
witness for the defendant, went across the creek to evade the 
otticers of the law who came after him. He told them he was 
in North Carolina and they went back. That standing on 
Smoky Mountain and looking across the Tennessee River, 
Big Fodder Stack is the main lead. That he had heard 
Joseph Milhgan, Harve Bright, John Bright, Mike Harris- 
son, and Wilham Harrisson and all of the old people who 
lived in that neighborhood who are now dead, but were citi- 
zens of Tennessee, say it was on Slick Rock Creek. That he 
knew what was ealled Tellassee Old Trail, which crossed 


Slick Rock Creek. At Record, page 181, he said that in the 
’50’s a copper fever broke out in that country, which ex- 
tended to the North Carolina side, and that entries were 
made in that territory, or options taken to work for copper. 

He also says he heard Levi Mashburn and Clinton Hud- 
son, old people who were then dead, say that Slick Rock Creek 
was the line, and that people who were evading the law ot 
Tennessee just went across the creek, and he says that he 
himself did it. 


JAMES WILLIAMS’ TESTIMONY. 


James Williams (Record, 184), eighty-five years of age, 
living in McMinn County, Tennessee, heard his father, who 
was then dead, often speak of Shick Rock Creek as the line 
and that it went up Slick Rock Creek to the Stack, and that 
everybody said that until the last few years and it was never 
denied until a few years ago; that his father lived in Ten- 
nessee, but went just over the Creek and located lands in 
North Carolina. On page 186, that his father told him that 
the line went up Slick Rock Creek and took the ridge to Big 
Fodderstack. 


Werk use Ses PiMON 


W. P. Taylor, eighty-three years of age (Record, 186), 
who had lived in Cherokee County, North Carolina, says that 
he knew Thomas C. Tatham well and that Tatham died in 
the 50’s.. That in *49 or ’50 in his presence Tatham told 
Morris that he was with the Commissioners who located the 
line, and that it went up Slick Rock Creek. (This was 
Gideon F. Morris.) That Tatham said it ran off the Smoky 
Mountain down opposite the mouth of Slick Rock Creek. He 
said they had to go down the river to ford it; that they forded 
it at the first ford and that they came back up the river to 
the mouth of Slick Rock Creek over the old trail to 
the mouth of Slick Rock Creek, and then went up the creek 
to a ridge and then to the Big Fodder Stack. That he claimed 
that to be the line and that one Andy Colvard in the fifties 
said the same thing. Colvard long since dead. Also old man 


10 


Upton, who lived in Madisonville, Tennessee, and the two 
Llarrissons, Mike Harrisson and Bill Harrisson, said the same 
back in 1876, and that he had never heard that line doubted 
until he heard of this dispute; that the general reputation 
located the line on Slick Rock Creek. He also heard James 
Taylor, his brother who is dead, and Piercey say the same 
thing. 


Vo beGRAN T'S Gas DIMONY. 


V. E. Grant, who lived in Monroe County, Tennessee, fifty- 
two years of age (record, 191), says that he had heard old 
men talk about where the line runs and that he knew where it 
was located by reputation. That everybody said it was on 
Slick Rock Creek and then up the spur to Fodder Stack and 
that twenty-five or twenty-six vears ago he heard Jake Shope, 
an old man, and Frank Schuler, both of whom are dead, say 
that same thing and while in Tennessee there was some little 
differences of opinion, all the old men in Tennessee said the 
line was up Slick Rock Creek. Among others, Mike Harris- 
son, who died fourteen or fifteen years ago, told him the line 
was on Shek Rock Creek and ran five miles up that creek to 
the lead that goes to Big Fodder Stack. That Jack Milhgan, 
who is also dead, said the same thing. Also Jason Culberson, 
who died twelve years ago, eighty-six years of age, fixed the 
line on Slick Rock Creek, and the witness’s father in law, 
who is seventy-seven or seventy-eight vears, still living at the 
tine he gave his testimony, said the same thing. 

On page 194, he mentions Boyd McMurray having dis- 
puted it. This witness says that Hangover is hardly a ridge; 
that it is broken up by gaps. On page 196, he states that 
when any of his cattle got over Slick Rock Creek that he was 
notified and had to get them and bring them back, and that 
Deputy claimed to live in North Carolina. 


5 


E: W. HARRISON’S TESTIMON Y. 


EK. W. Harrison, a resident of Monroe County, Tennessee, 
was raised six miles from Slick Rock Creek (record, 196), 
a son of Mike Harrison; that he, in 1868, heard his father 
sav the line ran up Slick Rock Creek four or six miles and 


-— 
Ce 


then up the ridge to Fodder Stack. That his father has been 
dead fourteen years. That the general reputation located the 
hne on Shek Rock Creek. That he had heard Colonel Milh- 
gan and Jack Milligan say that in 1868, and Elbert DeLash- 
met say the same and that the witness had several uncles who 
said the line was there; John Harrison, William Harrison 
and Bob Belew. That his people had entered some land 
there. They sent John Harrison to one Tom Calloway, who 
said he was with the Commissioners and that the line ran up 
Slick Rock Creek. That these were all Tennessee people 
and that there was some excitement at that time about the 
minerals. 


O, 2. WILLIAMS’ TESTIMONY. (Record, 200.) 


This witness lives in Swain County, North Carolina. He 
knew surveyor H. P. Hyde, who was a good surveyor, of good 
character ; who was one of the surveyors who ran the line for 
the State of North Carolina in 1897 and the witness was with 
him; that that survey ran from the mouth of Slick Rock 
Creek twenty-five miles to Beaver Dam Bald, in a southwest 
course; that it ran five miles up the creek, then up the ridge 
to Big Fodder Stack between Slick Rock Creek and Citico 
Creek and then to Laurel Top; fhence by the State Ridge to 
Beaver Dam Bald. That there were marked trees up Slick 
Rock Creek, some of which were blocked and found to be of 
seventy-six years growth. That as they went up they found 
other side line trees. Also found them on the State Ridge 
and found the eighty-six mile tree. That the marks along 
this line seemed to have been made with the same instrument 
and about at the same time. 

This witness was once clerk of the Superior Court of Gra- 
ham County; was in the Legislature of North Carolina, and 
was at the time of his testimony, and had been for six years, 
clerk of the Superior Court of Swain County, and said that 
in making the survey of 1897, they made no new marks. 

On page 302, he says that commencing at the Tennessee 
River, Hangover is in a southerly direction. 


12 


JASPER L. FAIN’S TESTIMONY: 


Jasper L. Fain (record, 204), who lives in Cherokee 
County, North Carolina, in the neighborhood of Tellico 
River territory, about one hundred yards from the line as 
claimed by North Carolina, says that he has always voted in 
North Carolina and paid taxes there. That he had known 
State Ridge by that name for twenty-five years. That it 
runs southwest and that Laurel Top is about half a mile from 
County Corners. That he had seen State line trees on the 
State Ridge all the way to Jenks Ridge and had seen the 
eighty six mile tree, a holly tree, marked “86 M.” That he 
has searched the line as claimed: by Tennessee around the 
headwaters of Tellico River by McDaniel Bald, but was never 
able to find any marks. That State Ridge is a main ridge 
running in a southwesterly direction and continues until cut 
in two by the river. That the other line claimed by Tennes- 
see runs about five miles due east from County Corners and 
in getting on to that ridge you would drop down about 410 
feet and drop on to a ridge that is up and down, which to the 
101-mile tree would be about six and one-half miles further. 
That he blocked some of the trees on the State Ridge line, and 
they showed eighty-seven years of growth. On page 212 that 
the ridge around Tellico River by MeDaniel Bald has low 
gaps and knobs all the way around. ; 


A. A. FAIN’S TESTIMONY. 


A. A. Fain (record, 212). This witness at the time of 
testifying was clerk of the Superior Court of Cherokee 
County, North Carolina. Speaks of the lands spoken of by 
the previous witness, and that they paid taxes on those lands 
in North Carolina and that warrants from the courts of North 
Carolina were issued and executed by North Carolina. 


JOHN DOCKERY’S TESTIMONY. 


John Dockery (record, 215), a resident of Cherokee Coun- 
ty, North Carolina, seventy-four years of age, who occupied a 
tract of land in the disputed territory, said that he always 
paid taxes in North Carolina and had never been asked to 


oes 
ey) 


pay any place else, and that he had known what was called 
State Ridge under that name since he was a boy. That he 
knew well old Billy Graves and old Bill Allen, who were 
dead, and. who both told him that they were along with the 
Commissioners when the line was run and helped run it, and 
that the line ran on State Ridge and that the witness had 
personally seen along that ridge a good many State line marks 
and that it was always known as the State line, and on page 
217, that it was never disputed until Fain got into-his law- 
suit. | 


E. R. HUNDSUCKER’S. TESTIMONY. 


E. R. Hundsucker, who lived in Cherokee County, North 
Carolina, states that he had known State Ridge fifty or sixty 
years and knew Wiliam Graves well,—the same Graves 
who was mentioned by the previous witness, and that Graves 
told him that he was with the Commissioners who ran the 
State line and that State Ridge was the line and that it 
crossed Tellico River. That he had owned a piece of land 
in the disputed territory, but had always paid taxes and voted 
in North Carolina and that his children went to school in 
North Carolina and that there was no dispute about the line 
in those days. 


ISAAC LOVINGOOD’S TESTIMONY. 


Isaac Lovingood (record, 221), seventy-seven years of age, 
says that he knew State Ridge where the said line ran and 
had known it for fifty-five or sixty years. That one Beaver, 
who occupied property in the disputed territory always 
claimed North Carolina as his home and paid taxes in North 
Carolina. 


D. W. DEWEESE’S TESTIMONY. 


D. W. DeWeese (record, 222), lives in Murphy, Cherokee 
County, North Carolina, sixty-four years old, says that he had 
known Billy Graves well, who said he was with the Commis- 
sioners, and Graves pointed the lhne out to this witness, as 
being on the State Ridge running southwest and that he had 
been with Graves along that ridge many times from Tellico 


14 


to County Corners, saw the State line marks, three hacks and 
two hacks and a blaze. That he had known State Ridge by 
that name since a period of six or eight years before the war, 
and it was so called, as he understood it, because the State 
line was on it. 

This witness had been the sheriff four or five times, clerk 
of the Superior Court twice, representative in the Legislature 
once, besides having held a number of minor positions. He 
had been mayor of the town and superintendent of the public 
schools, and says that the Fains and Beavers all paid taxes 
to him in North Carolina and that Tennessee never claimed 
taxes there. 


DAVID ORR’S TESTIMONY. 


David Orr (record, 863), a farmer fifty-seven years of 
age, living in Graham County, North Carolina, and who lives 
a short distance east of the land in dispute and has lived 
there for twenty-three years, says that ever since he has hved 
in that country he has heard that the State line ran up the 
Fodder Stack lead, and that it has only been claimed in the 
last fifteen years that the line ran over Hangover Ridge. He 
says that he heard Williams and Hoyt sav that they ran up 
and back on the Hangover Ridge and if there was any State 
line tree on that ridge it was a sourwood, but said that they 
could not find any State line trees. 


J. S. MARONEY’S TESTIMONY. 

J. S. Maroney (record, 867), who hved at Murphy, North 
Carolina for fifty-eight years, says that he knew one Robert 
Ballou well; that the witness went with an Englishman to 
exainine minerals and went to Ballows house in Tennessee 
and he thinks to Harrison’s house also, and then that they all 
went up Shek Rock Creek. This was about the commence- 
ment of the war. But after getting to Slick Rock, they went 
around by Little Fodder Stack Ridge and Big Fodder Stack, 
and looked at the property, which they pronounced valuable. 
Harrison, who went with them, was the one who claimed the 
land. They were citizens of Tennessee but say that the prop- 
erty lay in North Carolina, and as under the North Carolina 


15 


Laws they could not enter the lands, they wanted the witness’ 
father or some one else to enter the lands in his name. 


SAMUEL HENRY’S TESTIMONY. 


Samuel Henry (record, 867), seventy-eight years of age, 
who had been hving in Murphy, North Carolina, for fifty- 
five years, says that the witness entered some lands on Slick 
Rock Creek about 1870 for Ballew and somebody else, and 
the reason was that Ballew as a Tennesseean could not enter 
the lands. 


JW PA CLENS TESTIMONY. 


Dr. J. W. Patten, who had resided in Murphy, North 
Carolina since October 30, 1849, and was sixty-nine years of 
age, said that he knew old man Thomas Tatham, who was one 
of the party when the Commissioners ran the hne in 1821; 
that he has been dead for twenty years and that the witness 
also knew William Graves, who was also one of the same 
party, and that he is also dead; and that they both told him 
that the Commissioners ran up Slick Rock Creek to the fork 
of the creek (record, 868), crossed the west fork and struck 
the point of a ridge that ran down into the fork of the creek, 
and ran up that ridge to the divide that ran up to Big Fodder 
Stack and over the Fodder Stack on the main divide to Haw 
Knob. Thence up the Haw Knob Mountain to Laurel Top 
and down the Laurel Top to the divide between Snowbird and 
‘Tellico, and ran the line some distance and marked it on that 
divide. That they then saw that they were going too far 
south and to keep the trend of the mountain, turned and went 
back and took a ridge from Laurel Top that ran westerly to 
Tellico River, crossed the river at a short distance from the 
river marked a holly tree on one side Tenn. and on the other 
side N. C. and from there on to Beaver Dam Bald and on to 
Unaka Gap and then turned south and ran to the Hiwassee 
River and from there to the Georgia line. 

On page 869, this gentleman said he became interested by 
reason of the fact that his father in law had entered two tracts 
of Jand in 1854 on the head of Little Slick Rock. In 1867 
this had not been paid for, ‘“‘and he told me that if I would 


16 


pay what was due on them he would give them to me,” and 
that was how I came to talk to old man Graves. 

In reference to the Shek Rock part, he says he followed the 
line to near the head of Little Slick Rock and tried to trace it 
on to the Little Fodder Stack, and could not do it, and then 
went back and found the marked line leading down the ridge 
between two forks of Slick Rock Creek. That they went on 
following the line down the ridge to the foot where the forks 
of the creek came together at a distance of four or five miles_ 
from the Tennessee River. Then they crossed the prongs of 
Slick Rock and found an old line leading down the creek just 
outside of the Laurel as near the creek as they could get 
along and traced it down the creek that way to the creek’s 
mouth and found a large pine tree marked. The marks were 
not very distinct but we were satisfied that they were old 
marks. In: consequence of that tracing, the witness aban- 
doned making that entry because only a portion of it was east 
of that line. 


JAMES McDANIEL’S TESTIMONY. 


James McDaniel (record, 891), seventy-years of age, who 
lived about four miles from Murphy, North Carolina, and 
had lived in that neighborhood over sixty years, says that he 
knew William Allen and William Graves, both of whom were 
dead. That he lived about two miles from Allen’s house and 
three-quarters of a mile from Graves. That Graves told him 
that they were along with the Commissioners in 1821 and 
that the Commissioners had run up the river to Shek Rock 
Creek to the forks of the creek, then up a ridge between the 
forks of the creek to the top of the mountain and the main 
lead and then along the main lead of the mountain. 


JOHN DOCKERY’S TESTIMONY. 


John Dockery (record, 872), who is sixty-two years of age, 
and had lived for fifty-two years in Cherokee County, says 
that he knew both Allen and Graves who were amone the 
Commissioners in 1821. That old man Graves had told him 
about the line down at Tellico River but nothing about the 
Slick Rock Ine; but Allen told him that the line ran up 


17 


Slick Rock Creek and that that was the general understand- 
ing and reputation. That John Debity told him that the line 
ran up Slick Rock Creek. ‘That he had never heard any 
portion of the ridge called Unaka or Unicoy until they got 
to the Beaver Dam Bald. | 


Mo bab TTAIN SS LESTIMONY. 

M. L. Brittain (record, 876), then hving at Murphy, North 
Carolina, but from 1851 to 1855 was living near Robinsville 
in Graham County, says he had entered a quantity of lands 
near Slick Rock and was there with Mr. Piercey (J. W. C. 
Piercey ) county surveyor of Cherokee County, who told him 
that the line ran up Shek Rock Creek and that that was the 
general reputation and that Unaka Mountain commenced at 


Beaver Dam Bald. 


JAMES WHITAKER’S TESTIMONY. 


James Whitaker, who lved near Andrews in Cherokee 
County, since 1873 (record, 877), and in 1898, when he gave 
his deposition, was ninety-four years old, says that he knew 
David Taylor from 1837 until he died in about 1877, who 
lived near Andrews. That David Taylor told him he was 
one of the party with the commissioners and that Slick Rock 
Creek was the line. 


W. P. JONES’ TESTIMONY. 

W. P. Jones (record, 878), aged sixty-five years, who lived 
near Murphy, says that the general reputation was that Slick 
Rock Creek was the line. That he had many times carried 
a chain for J. W. C. Piercey, the county survevor, who said 
that that was the line, and this witness says that Unaka 
Mountain was only so-called from the Unaka Turnpike to 
Beaver Dam Bald. 


W. BP. PHILLIPS’ TESTIMONY. (Record, 879:) 


W. P. Phillips, who lives in Andrews, North Carolina, 
says that he knew John Debity and that Debity told him the 
2780---2 . 


18 


State line ran up Slick Rock Creek, and pointing to it, said 
the line ran up the line to Fork Ridge and that Fork Ridge 
was the line running up to Big Fodder Stack, and that Debity 
was then living on the east side of the creek in North Caro- 
hina, as he said. | 


STEPHEN WHITAKER’S TESTIMONY. 


Stephen Whitaker (record, 881), residing at Andrews, 
North Carolina, eighty-four years of age, says that he had 
known Tatham who was with the Commissioners, and that 
Tatham had told him the line ran up Slick Rock Creek and 
that they all got drunk and ran a straight line to Georgia and 
lost Diecktown, North Carolina, and that Piercey had con- 
firmed this. 

C. C. JONES’ TESTIMONY. 

C. C. Jones (record, 882), who was sixty years old and 
living at Citico, Monroe County, Tennessee, says that he 
knew well one Thomas Hensley, who is now dead, and that 
Hensley told him that he was with the party who ran the 
east line of Ocoee Land District, and that Slick Rock Creek 
was the east. line of Ocoee Land District because it was the 
State line. The general understanding was that Shek Rock 
was the State line. That he knew Debity and that the gen- 
eral understanding was that Debity lived in North Carolina 
and that Debity ran across the line to avoid arrest. 


R. B. MASH BURN’S TESTIMONY. 


Rk. b. Mashburn (record, 886), sixty-four years of age, 
who lives in Moore County, Tennessee, states that the State 
line between Tennessee and North Carolina runs up Slick 
Rock Creek to a spur, thence up to the top of the mountain 
just beyond Big Fodder Stack, cornered there and ran along 
Big Fodder Stack to the junction. When asked how he 
knew, said his father told him he was with the Commissioners 
in 1821. He said they had camped many times on Slick 
Rock Creek and that he had hunted in that neighborhood, 
and he could not say how many times when they had crossed 
the creek his father would say, “Son, we are in North Caro- 


19 


lina now.” He showed me some of the marked trees. One 
was near an old Indian trail; the Tellassee trail; that he knew 
the State line marks; that his father died in 1848. The wit- 
ness further says that his father in law, Clinton Hudson, 
who lived in Cherokee County, North Carolina, three or 
tour miles from Slick Rock Creek, right under the Hangover, 
told him the line ran up the Slick Rock Creek. The witness 
says that he found State line trees up the spur and that he 
saw these in 1854, and that he, in company with others, was 
looking for the State line to locate copper lands. That he 
found several trees on the spur running from the head of 
Shick Rock to the Big Fodder Stack, which were State line 
trees and were marked as such and that was the general un- 
derstanding, that Shek Rock was the line. On pages 891 
and 892, he gives the names of several old men then dead, 
who had stated that Slick Rock Creek was the line and that 
the so-called Hangover Ridge was not called Hangover until 
after you leave Hangover Peak. That of the people who had 
told him of Slick Rock Creek, some of them were interested 
with him in the copper lands and some were not. 


W.-P. CHAMBERS’ TESTIMONY. 


W. P. Chambers (record, 551), a Tennessee surveyor, 
whose evidence will come up again with reference to the sur- 
vey of the line, for eight years was a surveyor of Monroe 
County, Tennessee, says that Jack Milligan told him where 
the State line was and that he himself was running a survey 
for a Mr. Albright and they stopped at Milligan’s house, and 
that Milligan asked him what they were doing there. That 
Mr. Albright told him they were running the State line, and 
Milligan said, ‘The line runs up Shek Rock Creek and you 
can’t move it.”” He seemed to be mad because they were 
trving to move the State line. 


JAMES CRISP’S TESTIMONY. 


James Crisp (record, 562). This gentleman was also a 
surveyor, and says he was told by Peary Johnson and one Cal- 
loway that the line ran up Slick Rock. 


DEFENDANT’S WITNESSES ON TRADITION. 


The defendant produced the following witnesses on the sub- 
ject of tradition, to wit: 


JAMES L. NELSON. (Record, 937.) 


He says on page 938 that he was told by one William H. 
Thomas, who had entered two tracts of land beginning on 
the State line near the mouth of Slick Rock Creek, and that 
he wrote to this witness to get Piercey, the county surveyor, 
to survey them. That Frank Cooper told the witness that 
these surveyors made a corner tree on a spruce pine and ran 
right up to the Slick Rock Gap and to that ridge, and that 
Thomas told him that that ridge with the Hangover ridge was 
the State line, and to tell Piercey not to cross that line for 
that was Tennessee. 


PLEAS HENRY. -(Record, 949.) 


He says that he was always told that the State line ran up 
over the Hangover Ridge or lead; that he was told so by Jack 
Milligan and Atlas Crowder, who were citizens living in that 
neighborhood, but old man Crowder lived between Big Fod- 
der Stack and Little Fodder Stack. That Milligan lived on 
Tellassee Creek about a mile from the Little Tennessee River, 
right where you turn to go up the mountain toward Little 
Fodder Stack. That these informants were each about sixty 
years of age when he heard this. That they are both dead. 
On page 951, that Dave Orr, who is living and was one of 
the complainant’s witnesses, told this witness that the State 
line ran just below his mill straight west to Hangover, and 
that people between Slick Rock and Hangover voted in Ten- 
nessee. 


MILTON WILLIAMS. (Record, 964.) 


HTe says on page 965 that he has always considered the 
Hangover Ridge as the State line and never heard it dis- 
puted until this trouble came up, and that two old men, his 
grandfather Ben Johnson, and Mack Carr and one Deaver 


21 


and William Willams, all told him the same thing. But, on 
page 968, says he never heard it talked about as being at 
Slick Rock Creek until this dispute came up about eighteen 
years ago. On page 969, when pressed on cross-examination, 
he said he never heard William Williams speak about it but 
that was the understanding anyway. 


ONLEY WILLIAMS. (Record, 971.) 


When asked on page 973 what he had heard old people say, 
answered the question 32, “I have heard different tales but 
of no benefit to either one, some tell one thing and some tell 
another.” 


WILLIAM R. CARRINGER. (Record, 981.) 


States on page 982 that his father had told him that the 
line was on Hangover. When asked if he had ever heard any 
other person say so, he answered question 16, “I don’t recol- 
lect. I have heard it all my life off and on but I don’t 
recollect who I heard speak of it. It seems that ever since I 
recollect that the Shek Rock Gap line was spoken of and up 
by Hangover, but I don’t recollect. My recollection is I 
heard it spoken of many times, but I don’t know who it was. 
I cannot think of anybody who spoke of it except my father, 
he showed me, we were just traveling over, and he told me 
‘here is the line between North Carolina and Tennessee,’ but 
I remember that it was the general understanding that the 
line was there.” 


H. H. MILLER. (Record, 983.} 


H. H. Miller, hving in Monroe County, Tennessee, says 
his uncle Joe Graves told him that he was with the surveyors 
in 1821. He further told him that they went on the State 
Ridge to Tellico River. It was foggy and they found they 
had made a mistake. That the next morning they sent 
Graves and another man back to cut out the hacks and they 
got onto a high peak and just made a plat, but never went 
back and surveyed around the headwaters of Tellico; and he 
says that the State Ridge was so called on account of its hav- 


ing been thus surveyed. He says, “I asked him (Joseph 
Graves), why they called it State Ridge, and he told me.” 
Joseph Graves is dead. He further says that without sur- 
veying, they simply made a plat around the high ridge and 
went on. That also an old man by the name of Tate told 
him how it came to be called the State Ridge. That it was 
the general understanding that State Ridge got its name from 
the mistake above mentioned, and that the real line was east 
of that ridge. On page 987, he says he was told that they 
did not survey the line east of State Ridge but just platted it. 
That with reference to cutting out the marks. he was told 
that they cut out a few and found that it was too much labor, 
and that it was unimportant and they quit and went back. 


A. C. WILLIAMS. (Record, 991.) 


On page 996, he states that when he was a boy thirty-five 
or forty years ago, remembered old people say that when you 
get to Slick Rock Gap that was as far as North Carolina 
went. On page 1,010 he says that Hangover Ridge comes in 
at the mouth of Slick Rock Creek and that he is sure of that. 
That the middle ridge, that is to the so-called ridge across 
from tree 29, does not come all the way to the river, but that 
the longer one goes to Slick Rock Creek. And again on page 
1,016 that the main Hangover goes to Slick Rock Creek. 


JOHN W. STRATTON. (Record, 1,029.) 


This gentleman lives in Monroe County, Tennessee, and 
was eighty-three years of age. He says on page 1,031 that 
he had heard Levi Mashburn speak of the State line, and on 
page 1032, that he was told that when the Commissioners got 
on the top of Laurel Top, the fog came on thick and that they 
ran on and ran past the gap and down that State Ridge as 
they called it, until they got under the fog and saw they were 
wrong, and that they just stopped there and went right across 
to the top again, across the head of the stream there. And 
on page 1,033, that he had heard Piercey claim that the line 
ran around Tellico, and on 1,035, in reference to the upper 
contention, that he had heard his brother and others who 


lived on the North Carolina side say that the line went over 
Hangover. His brother is dead. And that Hoyt, the sur- 
veyor, also told him the same thing. 

On page 1038, on cross-examination, he says, that with ref- 
erence to the conversation with Mashburn that the Commis- 
stoners did not survey but only platted the line around the 
head of Tellico. On 1039, that the Commissioners in running 
the State line found that they were wrong and crossed the 
streain and just let that loop alone. This story about the fog 
and the mistake ef the Commissioners is corroborated by one 
Seymour, who is a lawyer in Knoxville (Record, 1034) and 
-at page 1049 about not surveying but merely platting the 
mountains to the east of State Ridge and the calling of the 
ridge by that name, and also had heard Hoyt, on page 1,052 
[on cross-examination |, say the same thing. On page 1,052 
on cross-examination he reiterates the statement that he was 
told they did not measure it around the mountain as claimed 
by Tennessee but only guessed at the line, and that if the re- 

port of the Commissioners is that they ran the line, measured 
it. marked it, and established mile posts at every mile, then 
what Graves told the witness flatly contradicts that report. 
This gentleman represented Stephenson in the Stephenson 
and Fain ease. 

On page 1,054, he says that old men in the neighborhood 
of the Tellico country always spoke of the line as running 
around the waters of Tellico and that his informants ridi- 
culed the commissioners report. 


JOHN H. HOWARD. (Record, 1,077.) 


He says on page 1,078 that he knew Jack Milligan and 
had heard him say that the line ran over the top of Hangover. 
On page 1,080, when he was asked the occasion of this con- 
versation, he answers, “I don’t know that I can tell any- 
thing about it. I just crossed the river in a vessel and he 
and these parties were there talking and they were talking 
when I went up to them and I don’t know what started the 
conversation.” But he admits that he did not hear the whole 
conversation. On page 1,081, he says with reference to 


2+ 


Grant, one of complainant’s witnesses, that he was an intelli- 
gent man of good memory and reliable, and so far as he 
knew, Milligan was not untruthful nor unintelligent enough 
to tell two different stories about the State line, and if 
Grant said he told a different story from the one reported 
by this witness, he would have no reason to doubt Grant’s 
word. 


JAMES FARR. (Record, 1,352.) 


This witness testified in the Hebard case that he lived on 
the Fodder Stack Lead, east of Slick Rock Creek on the old 
cove; that he always understood that the lne went over 
Hangover. That he had lved in the cove for ten years, 
that would make in from 1886. 


EMERSON DEBITY. (Record, 1,353.) 


Says he lived with his father on the land in dispute and 
voted in Tennessee, and it was always understood that the 
line ran over Hangover. [arr and Debity, the latter the 
father of this witness, had leases from the Beldings, which are 
claimants under North Carolina grants. These leases are 
attached to the deposition of Carver. (Record, 853 and 4.) 


B. R. NICHOLS. (Record, 1,354.) 


Lived on the disputed land about twelve years prior to 
1896. Understood that the ne was east of Slick Rock 
Creek. 

A. D. CLINE. (Record, 1,354.) 


He rented trom Hebard and voted at Mulberry, Monroe 
County, Tennessee. Paid his taxes there and worked the 
road down in Monroe County. 


JOHN DEBITY. (Record, 1,355.) 


This witness lived at the fork of Slick Rock Creek at the 
left-hand prong about nine miles above the mouth of the 
creek. That he had always claimed that he was in Ten- 
nessee and that he once tried to vote in North Carolina but 
they would (not) let him unless he swore that he was in North 


25 


Carolina, whieh he would not do. That he understood the 
Hangover Lead to be the State line. On cross-examination, 
he denies the lease that is attached to Carver’s deposition. 


BOYD McMURRAY. (Record, 1,358.) 


Says he was a farmer living in Monroe County, Tennessee, 
seventy-one years of age. Says that one Jack Milligan told 
him that the State line was over Hangover Lead and that the 
people who lived on the waters of the Slick Rock Creek voted 
and paid taxes and worked the public roads in Tennessee, and 
that one Hoyt a surveyor, told him he had located the line on 
Hangover, but further told him that he had found marks up 
and down Slick Rock Creek, but that that was a bogus line. 


Ly Ey Hi MoCROSKEY. (Record, 1,360.) 


Testifies on page 1,861 as to the reason for locating the 
east line of the Ocoee Land District at the Slick Rock Creek 
as given by Brannum and T. G. Harvey, who were on the 
survey, was that the Hangover lead was the State line, but 
the surveyors when they got to Slick Rock Creek stopped 
there, because the lands east of the creek were very rough, 
and stopped because they were worn out and tired of the 
work. 

We forbear to comment upon or compare the testimony for 
the respective parties until we attempt to sum up the case 
hereatter. 


COMPLAINANT’S EXPERT. TESTIMONY. 


In the order of printing, the first expert witness called by 
the complainant was D. B. Burns (record, 226), at that 
time residing at Knoxville, Tennessee, who testified by way 
of qualification that he graduated at the Burnsville, W. Va., 
High School and in 1901 graduated at the University of West 
Virginia and took his degree, and thereafter was constantly 
engaged in surveying and wooderaft from the time he was 
nineteen years of age. 

This witness was employed to survey and locate the State 
line in dispute. He commenced this survey in April, 1908, 


Kh 
Ss 


and finished it in May, 1910. In April, 1908, he com- 
menced northeast of the river where the State road crosses the 
Smoky Mountain about three and a half miles north of the 
Tennessee River, and surveyed from that point to the Unicoy 
Turnpike to the 101-mile post where it turned in a southerly 
course to the Georgia line, a distance of forty-two or forty- 
three miles. He surveyed with a transit, but says that the 
ordinary instrument used in these mountains when the lines 
were originally run was the compass. That the transit is 
the more accurate instrument; that with a compass you can- 
not hope to get accurate results, but with the transit it 1s pos- 
sible to get almost accurate results. 

Ife found a number of State line trees all the way from 
where he began along the Smoky Mountain down to the Ten- 
nessee River and up Slick Rock Creek to Big Fodder Stack 
and from the Big Fodder Stack to the junction along the 
main mountains and also toward Jenks Knob, and from 
there to the end of the Unicoy Turnpike at the 101-mile post, 
along the mountain. That wherever they found good timber 
he found marks just the same as alone the undisputed part 
of the State line. That he knew these were State line marks 
because a person who has been in the habit of tracing up old 
line marks can tell from their appearance. The State lines 
were on fore and aft trees, a blaze and two backs, and on side 
line trees marked with three backs. That you can tell from 
the tree about the age when the marks were cut through the 
bark. If the axe went into the wood vou ean block the tree 
and take out the bloek and count the number of growths 
which will give you the number of years since the mark was 
made. 

He then explains what blocking trees means. At the com- 
mencement of his surveying he took an observation on the 
North Star in order to determine the true meridian north 
and south, and says that by running an accurate line and esti- 
mating the angle between the lines, by back sights and front 
sights von will be able to calenlate the course of each particu- 
lar one. That after surveying about six miles, he took an- 
other observation of the North Star and obtained the true 
north and south meridian, and checked his work by the vari- 


24 


ous angles from his first observation, continued his survey to 
the junction of Hangover lead and Big Fodder Stack and 
took another observation at that point and found that his 
ealeulations checked with cach other, and that that was a 
check on the entire work. 

He says it is possible to count all angles even from the 
observation and count the true bearing of the line, but by tak- 
ing a number of observations, it would tell you whether you 
had made an error in taking angles. That he checked his 
work from the State Road on the Smoky Mountain to the 
junction in three different places and was perfectly satisfied 
that his work was correct. That about a year afterwards, 
he surveyed another line, an accurate transit line, from the 
junction over Stratton Bald down the main ridge to Cheoah 
River and down Cheoah River to Slick Rock Creek and tied 
‘into the line that he had run the preceding year and found in 
the entire circuit practically no error at all. That this last 
involved about twenty-five miles. 

‘He then produced a plat representing a survey of the State 
line, showing the Tennessee contention and the North Caro- 
lina contention. That in making this plat he ran a base 
line down to the Cheoah River and likewise to the Tennessee 
River and likewise to the other streams. That he surveyed 
Slick Rock Creek for about five miles up the stream, and the 
rest of it is sketehed in from side notes on the field. At 
Tellico River he only surveved that stream where the line 
crossed it. He also surveyed Cheoah River and then on his 
plat drew a system of coordinates, the north, south, east and 
west at a distance of five thousand feet and says that if you 
follow the coordinate system it is impossible to make an error 
that vou cannot detect. He explains that a fore and aft tree 
is marked on both sides the way the line enters and the way it 
leaves, and the side line is marked pointing in the direction 
within which the line runs. <A side line tree is not supposed 
to be on the line but near the line. 

On page 232 he states that the tree marks indicate to vou 
the direction in which the surveyor is going. The map that 
this witness filed, which we will come to later, introduced as 
Exhibit “D” to this witness’ testimony, facing page 336 of 


28 


the record, and contains a list by number of the trees between 
the beginning of his survey and the 101-mile post, consist- 
ing of 124 trees, and this will explain the significance of the 
number mentioned in his answer on page 233, when he says, 
“This block No. 1, which shows a State line mark, 1s in evi- 
dence, was taken from tree No. 13, a white oak.” On page. 
234, he says that he took the Commissioners map of 1821 and 
went to a poimt on the north side of the river opposite the 
“mouth of Shek Rock Creek at an elevation of four or five 
hundred feet above the mouth of the creek, from which point 
he had a splendid view of the Slick Rock Basin including the 
principal peaks, and observed that that map for a distance of 
six or seven miles indicated by the mile circles, showed a 
practically straight course to the first decided break to the 
left. He determined the general bearing of that portion 
from the meridian shown on the plat. He took his instru- 
ment opposite to the mouth of Shek Rock Creek, set it up 
on the same bearing taken from the original map, and found 
that the bearing took him right over Big Fodder Stack. He 
adds that at the time he went there, he was led to believe 
from prior investigations made by C. Z. Denton, that the 
line went over Little Fodder Stack; and he expected the line 
to go over Little Fodder Stack, but that after using the com- 
pass for that test, he found that it went over Big Fodder 
Stack. He then abandoned the idea that the line could have 
gone in any other direction than up Shek Rock Creek and 
over Big Fodder Stack. 

He then began his investigation for marked trees. The 
line northeast of the river trends southwest. Going down 
the line, he found near the bank of the Tennessee River a 
hemlock, commonly called a spruce pine, a fore and aft tree, 
one side of which had been blocked, which he designates on 
his map as tree No. 29, and for brevity we will hereinafter 
allude to that point as tree No. 29. The trees that he found 
on the north side of the river all had the same appearance as 
to age. 

He followed down the Tennessee River about half a mile 
to a point opposite the mouth of Slick Rock Creek, crossed 
the river at the mouth of Slick Rock Creek and continued to 


survey up the Slick Rock basin, surveying up that creek 4.9 
iniles, finding a number of marked trees. He then continued 
the survey up Slick Rock Creek to Big Fodder Stack lead 
and found a number of marked trees and blocked one of them, 
a fore and aft tree. This was tree No. 41, and block No. 4 
is in evidence. On surveying up tlis creek about five miles 
he came to a ridge leading up the Big Fodder Stack lead. 
That up this ridge it looked like the timber had been burned 
and a great deal of the large timber had been destroyed and 
that the balance was not of such character as to show the 
original marks, but he found some marked trees leading up 
that ridge to Big Fodder Stack some of which had been 
blocked. Tree 49 had been formerly blocked. Tree 47 he 
blocked and that block No. 7 is in evidence. That these 
trees all bore the same kind of marks as to age as those trees 
he found north of the river on the undisputed line. After 
reaching the junction and proceeding, he found twenty-six 
State line trees, all of which are designated on the map, and 
to this number Mr. Gannet, another of complainant’s wit- 
nesses, added some when he made his (Gannet’s) survey. 

Burns says he blocked two or three of these trees; one be- 
tween Big Fodder Stack and Rock Stack, and another under 
what is called Chestnut Knob. That he only had one ot 
these blocks there taken from the tree near Chestnut Inob, 
which he introduced in evidence as block No. 9, tree 78. 

In April, 1909, he continued his survey from the junction 
to Laurel Top and found marked, both fore and aft and side 
line trees, on that part of the line, all of which appeared ex- 
actly the same as undoubted State line trees that he had 
found. That between the junction and Laurel Top there is 
no dispute about the line. That from Laurel Top after mak- 
ing two attempts, he continued his survey to Jenks Knob; 
from Laurel Top to the point called County Corners he found 
no State line trees, but the timber on that ridge was verv poor, 
and that no timber along there would show the State line 
marks now, although this part of the line is undisputed. 
From County Corners he continued in a southwestward direc- 
tion down to what is called the State Ridge,—that is the 
ridge upon which the State of North Carolina contends that 


30 


the State line runs. ‘These principal points mentioned are 
designated in the exhibits already mentioned. 

In going down the ridge to Tellico he found a number of 
trees, State line trees, eight of which had been blocked. He 
continued to Tellico River and crossed it and found tree 
107, which is marked 86 miles on the right hand as you go 
to Jenks Knob. Across the Tellico River Jenks Ridge com- 
mences. The 86-mile tree is about a thousand feet from the 
Tellico River on the ridge. Between County Corners and 
Jenks Knob eighteen State line trees were found. State 
Ridge tallies with the map of 1821. 

In May he went with Mr. Gannet, one of complainant’s 
witnesses, to the 101-mile post, where the Unicoy Road crosses 
the State line, and they ran a joint survey of the line from 
that point along the main divide to Jenks Knob and tied to 
the line that this witness had previously run in March. 
Together they did a httle extra work at the 101-mile post, 
where the Unicoy Road crosses the mountain as indicated by 
the plat of 1821, and runs in a southerly course to the Geor- 
gia line, and they made the investigation to find that line. 
They found marks, one fore and aft tree, which they blocked, 
and that block is in evidence, block No. 10, tree 121. 

The purpose in making that investigation was to determine 
at what point they turned south. That the point called the 
101-mile post was shown on their map. This block No. 10 
shows marks precisely like those State line marks found on 
undisputed portions of the line. He then goes into the de 
tails of the survey from the junction- back over Hangover. 
That although he made a careful survey and search for State 
line trees over the Hangover lead, he found none. He then 
describes the ridges that run off from the so-called Hang- 
over, one of which runs to the Cheoah River and strikes it 
about five miles from its mouth, which is really a more prom- 
inent ridge than the Hangover. There is also a ridge that 
runs down from Hangover to the mouth of Shek Rock 
Creek. He then describes the sourwood tree that Hale, one 
of defendant’s witnesses, found, and Hale claims that it is a 
State line tree on Hangover. He goes into some details 
about the character of the marks and the number of the 


31 


marks on this tree and gives this opinion: ‘As a surveyor, 
I think, in fact I know, that it never had any State lne 
marks on it.” ‘This tree was decayed on the inside, as will 
appear from the evidence and testimony as we go along, and 
it was impossible for that reason alone to determine that it 
was a State line tree. ‘This witness continues that there was 
good timber there sufficient to have retained marks if they 
had been made in 1821. 

Mr. Burns continues that Mr. Gannet in making his sur- 
vey, started at the 59th-mile tree, back of where this witness 
commenced and surveyed about 2 1-2 miles more than this 
witness did, but furnished Mr. Burns with a copy of his notes, 
Exhibit ‘‘D,” is the joint work of Messrs. Burns and Gannet, 
and was made from a combination survey. That from these 
combined notes, the line from the 59-mile tree to the Ten- 
nessee River opposite the mouth of Slick Rock Creek is ex- 
actly 6.02 miles. That by the Tennessee contention, which 
crosses the river straight from tree 29 to Hangover Ridge, 
the distance to the river is only 5.47 miles. The south side 
of the river from the Tennessee River to the junction by 
Slick Rock Creek and the Fodder Stack Range is 10 miles, 
and that by the report of 1821 of the commissioners, the dis- 
tance is 16 miles, whereas the Tennessee contention is that 
it is only 14. From the 59th-mile tree, bearing on Burns’ 
map, is 8. 55 degrees, 5 minutes west. On the Commission- 
ers map it is S. 58 degrees west, and to the first sharp turn 
to the left from the 59th-mile tree to Fodder Stack is by 
Burns’ map south 49 degrees 41 minutes west; by the Com- 
missioners’ map 50 degrees and 40 minutes west, while the 
Hangover is south 29 degrees 8 minutes west. [rom the 
south bank of the Tennessee at the mouth of Slick Rock to 
the Fodder Stack is south 44 deg. 28 minutes west, and by 
the Commissioners’ map south 43 deg. 25 minutes west. That 
a similar bearing on the ground from the south bank of the 
river to Hangover is south 9 deg. 39 minutes west. This 
witness states that he could find Big Fodder Stack on the 
plat of 1821, that Hangover does not tally with the plat of 
1821; instead of breaking to the left it breaks to the right. 
From the Tennessee River, Big Fodder Stack is 6.67 miles. 


32 


On the Tennessee contention it is 5.9 miles from the south 
bank of the river to Ilangover. That the distances from that 
first decided break to the left is 3.8 miles while the distance 
from Hangover to the junction is 2.59 miles and that the map 
of 1821 shows the distance between Fodder Stack and the 
junction is 3 1-3 miles, and the junction, according to Burns’ 
map is 18 deg. 12 minutes east. The plat of 1521 shows 
the same course south 19 deg. 15 minutes east, while the 
course from Hangover to Junction is south 60 deg. west. 

This witness made a survey from Jenks Knob to County 
Corners, around by McDaniel Bald, which is on the line 
contended for at the Tellico District by the State of Ten- 
nessee. That there was good timber but no State line marks 
whatever, and this is corroborated by all of the witnesses 
on both sides. That the distance around that way is 11.31 
miles, while by the State Ridge between the same points it 
is five miles and in that five miles there are eighteen State 
line trees. 

The North Carolina contention corresponds with the 1821 
map. From County Corners to MeDaniel Bald on the Ten- 
nessee contention, the course is south 20 deg. 50 minutes 
east, while the plat of 1821 shows a course south 54 deg. 45 
minutes west for that same distance. From Jenks Knob to 
Rocky Knob is north 45 deg. 55 minutes west. That the near- 
est distance north from Cold Spring Gap to the State line 
ridge is 3.3 miles, so that according to that caleulation there 
will be one point on the Tennessee contention three miles dis- 
tant from where the plat of 1821 shows it to be at that place, 
and where the marked line also shows it. 

Exhibit “Bb” is a comparison map of the contentions of the 
State of Tennessee with the line run by the Commissioners. 
Exhibit “C” facing page 252 is this witness’ plat of the 
two contentions. 

The witness goes on to say that his plat shows the distance 
from the 59th-mile tree to the 86th mile tree at 27.64 miles. 
That running to that tree by the Tennessee contention to the 
junetion and then along the line down State Ridge it would 
be 25.56 miles. That going around Tellico, as the State of 
Tennessee contends, vou would come out on the undisputed 


Sts) 


line about a mile or a mile and a half from the 86th-mile tree, 
plainly marked. ‘That trom the 59th-mile tree to Jenks 
iXnob.in the North Carolina contention, is 28.77 miles. By 
the ‘’ennessee contention 32.86 miles. By the map of 1821 
it is 28.01 miles. 

This witness surveyed the Tennessee River for about 
twenty-eight miles and states that the Cheoah River enters 
the ‘Tennessee at an angle of about 80 deg., at the mouth. 
about 80 deg. ‘That Slick Rock Creek makes about a right 
angle to the Tennessee River. That the Cheoah River for 
ten or twelve miles is almost at right angles to the undis- 
puted line. ‘That the plat shows that the line followed the 
ereek. Right opposite tree No. 29 there is a bluff on the 
south side of the Tennessee River 700 feet high and extend- 
ing for about half.a mile down towards Slick Rock Creek and 
up towards Cheoah River and that there is no ridge extend- 
ing to the Tennessee River just opposite tree No. 29. 

On page 255, this witness gives the numbers of the trees 
that were located by him, and on that Exhibit ‘‘D” there is 
also a table of comparison of distances. This map Exhibit 
“1” faces page 256. The witness further says Hangover 
Ridge is comparatively low until you get pretty close to 
Hangover. There are three gaps, Slick Rock Gap, Big Fat 
Gap, and Sourwood Gap. That the ridge rises rapidly from 
Big Fat Gap, the last low place. Hangover Peak is over 
five thousand feet high, and that the Big Fodder Stack 
Range to Junction is very high and is the main mountain in 
that locality. That Roek Stack and Chestnut Knob are 
prominent peaks. That Slick Rock Creek has a considerable 
fall from Big Fodder Stack lead, goes through a gorge and on 
either side there are steep mountains. The Little Fodder 
Stack rises more rapidly and is higher than the Hangover 
Ridge for the first three or four miles. From a point north 
of the river it look easy to get up Slick Rock Creek. From 
the general appearance of the territory, by viewing it from 
the highest peaks on the north side of the river, one can 
readily see that the main mountain goes to. the right of Slick 
Rock Creek. It has greater continuity. That he made a test of 

2780--3 


Ob 


the map and survey of 1821, comparing it with his survey 
and the result was surprisingly accurate. He made a test 
of the plat of 1821 by taking some undisputed point on the 
line, for instance, the Tennessee River, using that as a base, 
drew a line to the first decided break in the general direction 
of the map, compared them with the general bearings in his 
own survey and found that the result was surprisingly aecu- 
rate. That the map of 1821 does not purport to be an accu- 
rate map topographically, but only the line itself; adjacent 
territory was just sketched in. He then takes the wording 
of the Commissioners’ report, ‘‘a true and accurate plat of 
the dividing line between the said States as settled, run and 
marked by us,’’ and states that he found it be that according 
to the undisputed portion and according to the North Caro- 
lina contention. That this map was made on a very small 
scale, but that witness got surprisingly close tests that he put 
it to in every way, that went right over the original marks. 
The scale of this map is 800 poles to the inch, 2 1-2 miles. 

3ut that map shows the river to be one-half mile wide, 
whereas it is not over 300 feet. 

He then explains why it is that that map apparently shows 
that the State line only went up the creek for a mile and 
a half, and attributes it to an error in platting the creek. 
There is no stream where Tennessee contends the. line 
crosses the river. In following up Hangover, the first 
stream you would strike would be Hiwassee, 37 or 38 miles 
from the Tennessee River. That the Tellico River is 40 
feet wide. That the name “State Ridge” seemed to be in 
general use and the name was apparently given to it because 
the State line ran on it. That his survey corresponded with 
the map of 1821 as far as he made the survey. There are 
two mile circles on that map of 1821 very close together at 
the 88th mile, which this witness (and it is corroborated by 
other witnesses on both sides) is of the opinion stands for the 
same mile circle at a point where two portions of the map of 
1821 were pasted together. The trail at the 93d mile men- 
tioned in the report of the commissioners comes out just 
right. 

Facing page 264 is a copy of the map of 1821 used by this 


35 


witness. ‘This witness tested the map of 1821 at the first 
mile tree by getting the bearings from the 59th-mile tree to 
the 101-mile tree, by the original plat of the commissioners 
and also by the actual bearing given by the witness’ survey, 
and there was only a difference between the two of five min- 
utes. He then proceeds to give the true location of the line 
as is claimed by North Carolina and explains why Fodder 
Stack Range would be selected. He says in coming down 
the Smoky Mountain to the Tennessee River, the big Fodder 
Stack is almost a direct line. The Slick Rock Basin looks 
like it is very easy to get up and he thinks that Big Fodder 
Stack would have been selected from a point back on the 
Smoky Mountain, and after getting to Laurel Top the ridge 
known as State Ridge has every appearance of being the main 
top of the mountain, and that the marked trees would take a 
surveyor over the line exactly as shown by the plat of 1821, 
and this witness’ survey, Exhibit ‘“D.” 

On cross-examination, p. 267, this witness says: ‘I did 
not survey from Shck Rock up to the main ridge.” “But 
there might be some doubt after one got to the junction in 
ascertaining which would be the main mountain.” The 
highest peak at that particular point is Stratton Bald and at 
the junction the Hangover is from three to five hundred feet 
higher than Fodder Stack. Stratton Bald and Hayo are 
about the same elevation and in going along from there down 
to Cheoah River the elevation of the ridge keeps pretty well 
up. That from Cold Spring Knob it begins to. fall until you 
get to the Tennessee River. 

This witness surveyed his line by a transit instrument, and 
on page 271 explains that from the dates upon the map of 
1821 he knows that the commissioners must have been hur- 
ried in their examination and notation of the line, and says, 
“As a matter of fact, in following along the ridge, they did 
not show, or did not attempt to show every nook and turn in 
the ridges. They sighted from the highest point, sometimes 
it would be a mile, and sometimes not so far; but in chaining 
and marking they did actually tollow around the ridge, and 
in their, platting they showed the distance from one high 
point to another high point straight, but they actually meas- 


OU 


ured around and adopted the line upon the top of the ridges 
along which they marked, also the marked trees can be found 
now.” 

That in locating the line north of the river, they followed 
the top of the ridge. The map of 1821 from about where 
the 64th-mile tree would be, shows a straight line to the 
mouth of Slick Rock Creek. On the south side they appa- 
rently followed the creek about a mile and a half. That in 
examining for trees along the north side of the river, from 
the tree 29 to the mouth of Slick Rock he, Burns, went along 
there hurriedly and did not find the tree that was subse- 
quently found by Mr. Gannet marked tree No. 30. That 
block No. 8 was taken out by Denton, but he was satisfied 
that it came out of the tree designated. That on the spur 
leading up to Big Fodder Stack he found no trees. That it 
is about four miles from Big Fat Gap to the river and about 
three and a half miles to Cold Springs Knob. Huckleberry 
Knob from Haw Knob and Laurel Top is the highest point 
of all. That it is not on the State line as claimed by 
either party. Citico Creek is entirely on the Tennessee side. 
The Commissioners of 1821 mention the west prong of Tel- 
heo. From Stratton Meadows to State Ridge is three miles. 
Further along he says, “The plat is one thing and the topog- 
raphy is another. The plat within itself is remarkably ac- 
curate, and if you undertake to follow the plat from any 
known point, it would take you across the Tellico River, but 
the topography is sketched on the map and does not show the 
line crossing the Tellico River.” 

The Wah-chee-see Trail strikes the line at 96 miles. Jenks 
Ridge runs from Jenks Knob towards Tellico. On Jenks 
Ridge there are three State line trees, which are described as 
105, 106 and 107. Trees 106 and 107 are close together. 


Reexamination. 


Surveyors in rough survey always sight from one high 
point to another, but in measuring, follow the meanders. 
The straight line on the plat of 1821 from the 64th-mile tree 
would go over very rough country. The line they marked 
is the one they adopted. It is impossible to cross the river 


Or 


or | 


at the No. 29 tree. A straight mile from the 64th-mile tree 
on the map of 1821 carries you very close to the mouth of 
Shek Rock Creek. That line is south 75 deg. 30 minutes 
west. to the river; as the State of Tennessee contends from the 
same point is south 53 deg. 45 minutes west. Tree 29 is 
about twenty feet from the river and the line points to the 
bank of the river and not twenty feet back as marked as 
approaching the river. 

In searching from tree 29 towards the mouth of the Slick 
Rock Creek on the north side of the river the witness found 
a tree that had a very strong resemblance to the original 
State ine marks. ‘That the error in sketching the creek on 
the map of 1821 makes the hachures, the etchings come too 
early. That the copies of the map of 1821 all seemed to 
differ. That the water divides do not correspond with the 
highest ridge and have nothing to do with the line. Taking 
the map of 1821 and starting at an undisputed point, it could 
not be possible to go around Tellico, nor by way of Hangover 
Ridge. The North Carolina contention is the only one that 
fits. 

The report of the commissioners mentions the west fork of 
Tellico River, but the map does not show it. Whatever slight 
differences there are between the plat of 1821 and the marked 
line, which he found on the ground, would in no way help 
support the contention of Tennessee. 

This evidence of Burns heretofore given was taken for use 
on the bill of review in the Hebard case, was adopted by a 
stipulation to this case, and was taken after the discovery of 
the map of 1821, but before the discovery of the Davenport 
field notes. This same witness on further cross-examination 
by General Cates on behalf of the defendant, testified among 
other things, that he first supposed after seeing that map 
that the line went up the creek a mile and a half and then 
up Little Fodder Stack. That when he went out, he received 
no instructions except to try and find the true line. That 
he very shortly, after viewing the country and seeing the 
map, determined that it could not go up Little Fodder Stack, 
but that it must run up Slick Rock Creek and the Big Fod- 
der Stack. 


a) 
io’) 


As he came down on the north side of the river, the line 
from the northeast was making right for the Big Fodder 
Stack, and the map showed that it crossed at some stream 
and that it was Slick Rock Creek. That in order to follow 
the map it was necessary to follow that course. That for 
two or three miles the State Ridge is the highest ridge down 
in the Tellico Country. 

On page 304 the witness gives certain elevations from 
the Government surveys and states that County Corners is 
one-half mile from Laurel Top and from Laurel Top to 
Grassy Point is one mile. ‘That he found some of the State 
line trees had been remarked in about 1853. | 

He again describes what the State line marks are and 
identifies State line trees, and states that he was raised in 
the woods and was familiar with old line trees and that he 
has the blocks used in the Hebard case. He describes again 
his sighting from the north side and his taking his instru- 
ment to a point opposite the mouth of Slick Rock Creek. 
That he has every reason to believe that this State line was 
run with a magnetic compass, which varies from time to time 
end at different localities. That he tested his survey where 
he crossed the Tennessee River to the top of Big Fodder 
Stack, and then compared that with the 1821 map, and that 
he could determine from that map whether the line went up 
Little Fodder Stack, Shick Rock Creek, or Hangover. That 
the line to Georgia, the end line of the whole survey, is not 
due south. 

He again explains the method by which surveys of this 
kind are made, by sighting from one point to another, and 
measuring around the meanders. 

On page 322 he explains the variations of the needle, and 
facing this page is a copy of the map made for the Hebard 
case, wich is Exhibit “D” reduced. 

By the map of 1821, Slick Rock Creek appears to be about 
800 feet wide, whereas it is in fact 20 or 30 feet. 

After explaining again what the State line marks are, he 
states that there are no such marks on the sourwood tree on 
Hangover Ridge. 

Commencing on page 337, the witness gives the elevations 


39 


from the Government contour map on the different ridges, 
and continues that on pages 338 and 339. The distance 
from where the turnpike crosses Smoky Mountain to Hang- 
over along the Tennessee contention is 8.53 miles, while along 
the North Carolina contention, the Big Fodder Stack is 
10.27 miles. That the Big Fodder Stack coming north is 
the main ridge; that the State Ridge below in the Tellico 
Country is about the same elevation for two miles as the 
ridges around MeDaniel Bald. 

Speaking of tree, No. 30, he says that he found the origi- 
nal State ne marks on it on the side up the river, a chest- 
nut oak. That on the reduced copy of his Exhibit ‘‘A” used 
in the Hebard case the line from A to B is a test line. In 
reference to the straight line at the mouth of Slick Rock 
Creek at about the 64th mile tree, the witness says that he 
took the bearing of that line and found its intersection with 
the State ine on the main ridge as surveyed by him, and 
that the surveyors must have taken a bearing from the mouth 
of Slick Rock Creek, which they recorded in their notes, and 
that the chainmen made their surveys -from the mouth of 
Slick Rock Creek and when they platted it, straightened the 
distances out. That the straight line to Shick Rock Creek 
as actually measured is about 5,800 feet and it is 8,269 feet 
to Slick Rock by way of trees 29 and 30. That Little Fod- 
der Stack is the main ridge and the others are only spurs. 

On page 353 this witness says that he thinks that when 
the surveyors of 1821 reached the point on the Smoky Moun- 
tain where they could see the mouth of Shek Rock Creek 
(that is the point from which they took their bearing) they 
sketched in the streams instead of taking the courses and dis- 
tances and showed the courses and distances on the map, and 
that he believes they just platted the distances and showed 
about straight, and that it is a matter of opinion, whether 
the line down by the trees 29 and 30 reaching the mouth of 
Shek Rock that way, or the straight lne from tree 64 as 
they platted it, is the State line. That across from tree 29 
there is just a steep mountain bluff. 

On page 355, on redirect examination, this witness again 
states his experience as a surveyor. That the general course 


40 


of the map of 1821 took him up Slick Rock Creek and big 
Fodder Stack. He says that he was handed this map of 
1821 and asked to see if he could find the State line as orig- 
inally run by the commissioners. That plat showed the 
Tennessee River on it; showed that it crossed the Tennessee 
River at the mouth of the stream marked ‘‘Creek,”? which he 
believed to be Slick Rock Creek. That he took the general 
course off of this map of 1821 from the mouth of this creek 
marked on it to the first decided angle that it made to the 
left a distance of six or seven miles from the river, and after 
having obtained that bearing from the meridian shown on the 
map, he set his compass opposite the mouth of Shek Rock 
Creek where he could get a good view of the high peaks and 
Shick Rock Basin and in that way tried to find out in what 
general course the Commissioners did run the State line af- 
ter crossing the Tennessee River, and that he found after 
setting upon this bearing that it could not possibly reach the 
Little Fodder Stack as he had previously supposed it would; 
he then abandoned the idea that it could ever reach Little 
Fodder Stack and follow the plat. That he also found that 
it was impossible to go over Hangover and follow the plat. 
That he found that the general course of the plat took him 
up over Slick Roek Creek some distance, and then he found 
the trees up the spur leading to Big Fodder Stack and from 
there to the main ridge. That he was carried from his com- 
mencement point to the Tennessee River and thence to Slick 
Rock Creek by marks. He searched the trees and blocked 
some, and that the map of 1821 was a guide. That in fol- 
lowing old maps, the rule is that where monuments can be 
found where there is no mistake as described in the deed, you 
must go to those monuments regardless of the courses and 
distances, whether the distances be longer or shorter, and 
that it would be ridiculous to expect to find everything on 
the ground just like the map. 

That certified copies of the map of 1821 seem all to differ, 
that in the one used by Williams, the ridges and creek are 
not like the one he had and there is a difference in the path 
from the Valley Towns. That on the map of 1821 the width 
of all the streams was exaggerated and that Slick Rock Creek 


—s 
— 


is merely sketched in and wrongly and that it is exaggerated 
in width and length. That he believes: that the Commission- 
ers carefully measured up that creek or along the edge of it 
for about five miles, but it only shows on the plat that the 
line runs up to a mile and a quarter. That as they were 
going up along the line Slick Rock was the only stream on the 
right that they could see. That Slick Rock goes to the Ten- 
nessee at an angle of about 60 degrees; the Cheoah at about 
30 degrees, and that Slick Roek corresponds at no point with 
Cheoah, which for seven or eight miles is north 45 degrees 
west; the Slick Rock for a mile and a quarter is north 30 
or 35 degrees east. These courses are coming toward the Ten- 
nessee River. That the so-called straight line at the extreme 
south end of the map of 1821 is not due south, but is about 
7 degrees out, but that it was so laid down as to. enable the 
witness to find the true line, and on page 363 he explains 
why. One reason for it is that he thinks the map is pasted 
together in an accurate way; that that line is not in any dis- 
puted territory. That Rock Stack is the first high peak be- 
tween Big Fodder Stack and the junction and about one-third 
of the distance. 

In following up the waters of Slick Rock the witness says 
that that gave him the curve, a rough curve from the junc- 
tion concave from the east, but that going up Hangover from 
the junction, the curve is in the opposite direction, the con- 
cave from the west and the former curve is the curve that 
was on the 1821 map, concave from the east. That the 
map of 1821 was a great advantage. There was a variation 
in the bearing in going from Tennessee River to Big Fodder 
Stack, and going to Hangover of 30 or 40 degrees, which he 
afterwards changed to 40 or 50. That the Hangover lead 
forks. That one fork goes down Slick Rock Creek and the 
other to Cheoah, but that just opposite tree 29 there is no 
ridge. That further along on the north side of the river 
after leaving tree No. 30, and about 150 feet further up the 
river he found a hemlock with State line marks on it. This 
is a tree other than No. 29 and is an extra one not on the 
witness’s plat. That this tree was marked with a side line 
tree on the northeast side. That the hemlock just mentioned 


42 


was one-fourth of a mile below No. 29; that No. 29 is about 
one hundred feet from the bank of the river and that there 
are two trees marked with State line marks between tree 
29 and a point opposite the mouth of Slick Rock Creek. 
That between the tree 29 and the creek a chestnut oak which 
he blocked is about 1,475 feet, and that he found that tree 
blocked on the east side and he blocked the western side, 
which is offered in evidence marked Block No. 11. That 
on this block he found more recent marks between the old 
marks and the marks made in 1853. That Gannet found this 
tree No. 30. That he—witness—searched on the straight 
line shown on the plat of 1821 from the 64th mile to Shek 
Roek Creek, but could find no marks, nor did he find any 
marks along the ridge which goes from the Hangover to the 
mouth of Shek Roek Creek. That the straight line of the 
map of 1821 from the 64th mile tree to the mouth of Slick 
Rock Creek runs over very rough country and that that 
straight line is a compromise between this ridge and the 
river bank. That the map of 1821 shows the State line 
striking the mouth of the creek, but as there was probably no 
tree standing in the middle of the creek, they marked a tree 
standing on the bank. 

On page 376 he says that County Corners is recognized as 
the corner of three counties, Cherokee and Graham in North 
Carolina, and Monroe County in Tennessee. That every- 
body speaks of it in that way and that it has always been 
treated as the corner of Graham and Cherokee counties. 

The witness made a careful survey of Jenks Ridge and 
State Ridge. That the map of 1821 is on the scale of 800 
poles to an inch and it would be impossible to indicate every — 
bend, 1/100th of an inch would be 132 feet and that a fair 
way to use such a plat would be to follow the general course. 
That Cheoah is a considerable stream with creeks running 
into it. It extends to Robbinsville in Graham County, and 
that Citico Creek is 30 to 35 miles long and that Slick Rock 
Creek and Citico head near each other. On page 383, the 
original map of 1821 was produced to the witness and upon 
notice given by the State of North Carolina to produce this 
map at the hearing before the Supreme Court of the United 


43 


States in this case, the State of Tennessee accepted that no- 
tice and agreed to produce that map. On page 391, the wit- 
ness says that Citico Creek is on the opposite side of the 
mountain from Slick Rock. That the Hangover Ridge at 
Hayoe branches and separates into a number of different 
ridges; one leads to Cheoah and one to the mouth of Shek 
Rock, and one leads towards the river, and there are various 
spurs leading down between the different streams shown 
on the map between Bear Creek and Barker’s Creek, ete. 

On page 402, this witness explains the way in which he 
uses the term ‘‘traverse” and states further that the report of 
the Commissioners of 1821 in speaking of the old Trading 
Path leading from the Valley Towns to the Over Hill Towns, 
means that that is where the trail strikes the line, to wit, at 
the 93d mile. It leaves the mountain near the 96th mile, but 
that according to the Tennessee contention in the Tellico 
Country you will go six miles further to strike that trail. 

The Davenport notes, (Record, 623) purport to be. the 
notes of the original survey of 1821, discovered after the tes- 
timony passed on before, was taken. The authenticity of 
those notes was proven by the testimony of W. D. Jones (Rec- 
ord, 605) and Emma Harper Cilley (Record, 634). These 
notes were handed to D. B. Burns and other witnesses, and 
various witnesses have testified concerning them. Burns’ 
testimony commences on Record, 643, and Exhibit “B B” 
complainant’s exhibit, is a map made by this witness from 
these notes. | 

The straight line from the 64th to the 65th miles on the 
plat of 1821 is shown by these field notes to be south 75 de- 
grees west, and the witness says that if you went to Cheoah 
you would have to go southeast and across from tree 29 would 
be south 30 degrees west, and that the Davenport field notes 
tally with the map of 1821 almost exactly. He says he found 
two differences; one of them is between the 71st and 72d 
mile, but at the creek finds that it tallies with Slick Rock 
Creek right along and that the Yellow Hammer Creek flows 
into the Cheoah River two thousand feet from its mouth. 
He then picks up each mile as surveyed by him and on the 
map of 1821, and upon these notes, and shows how closely 


44 


they correspond up to the very point where it leaves the creek. 
That if you attempt to apply these calls to the Cheoah River, 
you would find that the course of the Cheoah River is south 
about. 45 degrees east, and that each call ot the Davenport 
notes, even if you. got on to the Cheoah River, would take 
you away from it. There is no trail on the Cheoah. That 
crossing the Cheoah River backwards and forwards would be 
impracticable. That you go up Shek Rock Creek at an 
angle of about 45 degrees and that the points mentioned on 
the creek are at the nearest point 2 1/2 miles from the mouth 
of Cheoah River, and that the calls take you up to Big Fod- 
der Stack. That between the 71st and 72nd miles the call 
south 30 degrees west 80 poles, in order to make it conform 
to the ridge with the line as actually run, would have to read 
east instead of west. That Citico Creek is concededly in 
‘Tennessee. 

He then on page 654, pursues the calls to the junction and 
states that you could not reach Hangover by the courses in 
the field notes, and that up the Cheoah River for five miles 
would be ten miles away from Citico Creek and that up the 
Hangover you would cross the trail a mile too soon. That 
on the undisputed line below the junction the map of 1821 
and the field notes tally. He then speaks of the other error 
that he finds between the 11th and 12th miles. A course of 
the notes of south 30 east 154 poles should be west. The 
other error he discovered on his survey was between the 95th 
and 96th miles. He states that there is a call in that mile in 
the field notes of south 45 degrees west 80 poles, and that 
you would have to plat north 45 west 80 poles, and the notes 
show that the Commissioners went up Slick Rock Creek for 
five miles. That in the Tellico Country the notes tally with 
the North Carolina contention, and at the end of the 86th 
mile, speak of the holly tree marked, and that tallies. That 
from the Tennessee River to that 86th mile, there is a dif- 
ference in the witness’s surveyed line and the plat of the 
Commissioners of about a quarter to half a mile, but the 
shape is exactly similar by his survey, by the field notes and 
by the map of 1821, but that the line as claimed by Tennessee 
has no resemblance whatever. That the field notes and the 


45 


map of 1821 agree except as to where the witness has stated 
the difference. That the map of 1821 shows that the Indian 
path which reaches the line at 93 miles, runs with it about 
two miles. | 

On page 661, upou cross-examination, he says that to 
reach the 86th mile tree you must cross the Tellico River. 
Further, upon cross-examination, counsel required Mr. 
Burns, the witness, to produce and read into the record his 
field notes, commencing on page 663. On 666, the witness 
says from the north bank of the Tennessee River opposite the 
bank of the Slick Rock Creek to the mouth of the creek is 
south 41 degrees, 50 minutes west. This differs from the 
field notes, evidently because the field notes adopted a straight 
line lying south 75 degrees, west 320 poles. From the 64th 
mile tree to tree 29 is 49 degrees 24 1/2 minutes west. 
Burns’s plat of the field notes is shown in the record facing 
page 1560. 

On page 674, he explains why a certain line from the 
mouth of the creek is given as practically a south line, with- 
out putting in all the little kinks and bends in the creek. On 
page 676, he says that the error in the notes of south 30 de- 
erees west, which should be south 30 degrees east, Mr. Burns 
found was an error because the latter conformed to the ridge 
and the survey and marks. 

On page 679, Mr. Burns gives the calls of his survey north 
of the 86th mile tree, and upon reéxamination, on page 683, 
he explains that there is no discrepancy between the field 
notes and the map of 1821 at the Equoneetly Path. On 684 
and 685, he speaks of the error at the 72d mile; how he came 
to correct it and states that the mark at the 75th mile would 
have corrected the error, and also details the error in the 
sketching of the creek, but that the Davenport notes substan- 
tially complied with the line as the Commissioners were di- 
rected to run it. The Davenport notes would make the hne 
a little longer by taking every little angle. He also men- 
tions the white oak at the 72d mile and the effect of lapse of 
time on marks and in making his conclusion, that so far as 
this white oak was concerned, he could not tell whether this 


46 


mark was a State line mark, but just beyond it he found un- 
doubted State line marks. 

On further cross-examination, page 687 of the record, states 
that he did not understand the etching of the 1821 map, and 
that the courses and distances on that map were the same as 
on the field notes and that there is no creek existing in that 
country at all as shown on the 1821 map and that the marked 
trees show the true line. 

On pages 690 and 691, there is questioning with reference 
to a stone or maple marked ‘“‘W. D. R. A.” near the Hiwas- 
see River, which it is insisted by complainant were the ini- 
tials of the two surveyors who made the survey of 1821, to 
wit, Wm. Davenport and Robert Armstrong. The Daven- 
port field notes by this tree was marked with certain initials; 
these initials complainant says are given by the field notes 
as “W. D. R. A.,” while defendant insists that they are 
1X D. R. A. The witness, Burns, was examined in regard 
to this and first said that they looked like 6 X. D. R. A., 
but on a more careful examination of them he said that he 
was satisfied that they were W. D. R. A., and meant Wm. 
Davenport and Robert Armstrong, and that it was in accord- 
ance with certain of surveyors to mark such trees with their 
initials at times, and that this fact, confirmed his opinion, 
that the true reading of the field notes was W. D. R. A., be- 
cause Win. Davenport and Robert Armstrong were the sur- 
veyors in running this line between the States of North Caro- 
lina and Tennessee in 1821. 

The next witness called by the complainant was 


S. S. GANNET (Record, 408.) 


This gentleman is in the employ of the United States Geo- 
logical Survey and is engaged in topographical surveying. 
His position in that department is that of Geographer. He 
was educated in the schools of Augusta and Bath, Maine; 
Bowdoin College, Maine; and in the Massachusetts Thence 
of Technology at Boston, and received instructions in astron- 
omy from Professor R. S. Woodward, present head of the 
Carnegie Institution in Washington, as well as a man of large 
practical experience in surveying lands in mountainous coun- 


41 


tries, and is thoroughly acquainted with woodcraft, and in 
1882, 1883, 1884, 1885 and 1886 surveyed the Western 
North Carolina country. 

In running the boundary line, he details his experiences, 
and on page 410 says, “I was detailed to the Indian Bureau 
of the Interior Department to locate the intersection of the 
107th meridian with the Colorado-New Mexico boundary 
line by means of the marked line; and again in 1898 I was 
detailed to assist in the work of locating the boundary line 
between Montana and Idaho, starting where a certain Meri- 
dian crosses the Bitter Root Mountain, and established that 
by astronomical observations. In 1908 I was engaged 
throughout the season in remarking and re-tracing the bound- 
ary line between Idaho and Washington for a distance of 
about 120 miles.” 

On May 31, 1910, he was appointed by the Supreme Court 
of the United States as one of the three Commissioners to 
mark the boundary line between Maryland and West Vir- 
ginia. That in his early years all of his work was mountain 
work from Maine to North Georgia, and that he has been 
on all of the prominent mountains on the Allegheny and 
Appalachian ridges. | 

On page 411, he testifies how he became connected with 
this work. He says the Attorney General of North Caro- 
lina requested the Geological Survey to investigate the qucs- 
tion pending between the States of North Carolina and 
Tennessee relative to the location of the boundary line be- 
tween them and to find out if possible where the original line 
was run and marked, and that he was directed by the di- 
rector of the Geological Survey to engineer the work. That 
he was to actually go on the ground and find out from his 
knowledge of the country and experience in such matters 
where the original line was actually run and marked. That 
it was his duty to find out the truth about where the lines 
run, regardless of whom it affected. That he entered upon 
this work in the latter part of April, 1910. 

On page 412, he says: 


“T started from Murphy, North Carolina, and went 
first to the 101st mile post, where the Turnpike crosses 


48 


the Unicoy Mountain, and then I ran a line South- 
ward. Mr. D. B. Burns was with me with some other 
men. Mr. Hugh Sadler, of Tennessee showed us 
where the 101st mile post was and he accompanied us 
down the line to aid in the identification of the line.” 


Me said he investigated in the ncighborhood of the 101st 
mile post to ascertain if it had been correctly located and 
‘an a line southward and identified several trees and blocked 
one tree, which proved to be the original mark of 1821, as 
the growth of that tree was eighty-eight years. That the block 
produced by Mr. Burns is that one that he refers to. That 
he found one fore and aft and three side line trees. 

He then ran a line Northeast of the 101st mile post; and 
found several marked trees and he identifies and says that he 
signed the map Exhibit “D.” That he ran then along 
the undisputed line to Jenks Knob, having with him the map 
of 1821, and on the way to Jenks Knob found twelve State 
line trees. He surveyed on down Jenks Ridge and up State 
Ridge and found several State Line trees. He found twenty 
State Line trees between Jenks Knob and County Corners. 
From Jenks Knob to County Corners this witness made a 
survey independent of Burns, using the same instrument that 
he used in the survey of the line between Idaho and Wash- 
ington and employed the exact methods approved by the 
United States Government. That as he came on to Jenks 
Knob and to County Corners he found that his survey tallied 
almost exactly with the map of 1821, and that by going 
around by McDaniel Bald it would not tally with that map 
at all. 

That in making that survey the line crossed Tellico, that 
you cannot help it. That around by McDaniel Bald is twice 
as far as by the State Ridge line. That he did not go around 
by McDaniel Bald because it was obviously so far out of the 
way according to the map of 1821, and the marked line, that 
he decided that the line could not have gone that- way. The 
line as marked agrees with the 1821 map. That he went 
along the Hangover lead and investigated every course for 
marked trees along that lead, and found no State Line marks, 
either from the Junction to Stratton Bald, or along Hang- 


49 


over. Nor did he find any on the ridge from Hangover to 
Slick Rock Creek. That the sourwood tree was the only one 
that could by any stretch of the imagaination be called a 
State Line tree. This was on the Sourwood Gap. The tree 
was decayed inside and it was impossible to tell its age from 
the block and the marks and hacks were apparently put there 
promiscuously and were not State Line marks; it stood in an 
open space near a trail and a place that had evidently been 
used as a camping place. 

That he went along Rock Stack to the Fodder Stack and 
down Fodder Stack lead to the forks of Shick Rock Creek. 
That from the junction down that way he found a number 
of trees well marked, apparently State Line marks, corre- 
sponding in age and appearance and other respects with the 
State Line trees on the undisputed portion of the State Line. 
That he went on to the Little Fodder Stack Lead sufficiently 
far to prove whether there were any State Line trees on that 
or not, and he found none. That in going down Fodder 
Stack Lead towards the forks of Slick Rock Creek he found 
a hemlock State Line tree, but further along the timber had 
been apparently burned, and just above the mouth of Slick 
Rock Creek he found several well marked trees and he iden- 
tified eight trees above the forks of Shek Rock. These trees 
were marked with the same instrument; that he found 
twenty-six trees between the Junction and big Fodder Stack ; 
ten between Big Fodder Stack and the course of the ridge 
down to the creek, and from there to the mouth of the creek 
eleven trees; in all forty-seven trees, all of them State Line 
trees. 

That the 1821 map carries you over Big Fodder Stack 
route to forks of Slick Rock Creek and thence to the mouth 
of Slick Rock Creek, and the marked line carries you over 
the same line. 

On the other ridge between Stratton Bald and Hangover 
the timber is scrubby, but below Hangover the timber is good, 
suitable for marking in 1821. The timber is good at Sour- 
wood Gap, and after careful examination, they found no 
marks that indicated that they were State Line marks on the 


2780---4 


50 


Hangover Ridge. There were one or two that were marked 
promiscuously. That from the mouth of Slick Rock Creek 
he crossed the river and followed the line along the Smoky 
Mountain to the 59th mile. 

On page 418, he says with reference to the work of D. B. 
Burns, “I would say that I found his work certainly the most 
accurate of any work I ever had any dealings with; especially 
considering the fact that it was in such a rough country, I 
have never known work to be so accurate in such a rough 
country.” 

He went to where the wagon road crosses the Smoky Moun- 
tain, Burns’ Station zero, and then followed the undisputed 
line Southwestwardly. The marked trees there were just like 
those that he found below. Coming down the line on that 
side of the river, the Big Fodder Stack seemed to be a very, 
prominent land mark from near the 59th mile tree. Sighting 
along the line to the Tennessee River, Big Fodder Stack is — 
the most prominent summit in the line. Surveyors coming 
down that way would most naturally select the Fodder Stack. 
You could see it a mile North, and their route would lead 
them directly toward it, and it would naturally direct the 
attention to Slick Rock Creek as the easiest way to reach it. 
And this coincides with the 1821 map. The other route was 
entirely too far to the left or East. He found the hemlock 
tree No. 29 near the river. Just across from there there is 
a very steep bank, almost inaccessible, 800 feet high, spread 
out up and down the river for three-quarters of a mile, which 
was not a practicable route, it was too steep. It was practi- 
cally impossible to survey a line up and down that bluff. 

Continuing down the river from Tree 29 on the north. 
bank I found a Chestnut oak, a fore and aft tree, a State Line 
tree. Further down it was more rocky, and opposite Slick 
Rock Creek was a solid ledge. Fodder Stack averages higher 
than Hangover. The latter is more broken and has deep gaps 
iat 

That he ran up the ridge to Big Fodder Stack in a South- 
west direction, just as is claimed by the State of North Caro- 
lina. The line was shown running up Slick Rock Creek by 
the Ocoee District map. The Slick Rock runs through a steep 


51 


gorge with steep bluffs on one side and then on the other. 
That it goes down a steep descent about 100 feet to the mile. 
The Fodder Stack is the leading ridge, of greater average 
altitude and continuity. Down the Little Fodder Stack the 
average is much greater than Hangover, which is more 
broken and has more deep gaps. The ridge around the head 
of Tellico has a greater average height than the State Ridge 
but is a good deal broken. 

From County Corners the natural course would be along 
State Ridge. The main ridge really turns about at right 
angles to the east. The State Ridge is not so flat; more of 
a backbone and for some distance from County Corners State 
Ridge is higher. From Hangover to the junction the eleva- 
tion is greater than to the Big Fodder Stack Junction. Com- 
plainant’s Exhibit ‘‘E” was here offered. 

The Government contour map shows the line on Slick Rock 
Ridge and Big Fodder Stack in a general southwest course 
and then a little east of south to the junction, the same as the 
North Carolina contention. At Tellico it supports the Ten- 
nessee contention. 

He then speaks of the maps of this locality in the Congres- 
sional Library at Washington. 

On the North this witness extended his survey as far as 
the 59th mile tree, and he says that our map Exhibit “D” 
corresponds exactly with data that he obtained on the ground, 
and the list of trees given were all on the North Carolina 
contention and none on the Tennessee contention. He then 
gives a list of the trees that he paid particular attention to 
and states that he found tree No. 30 and also No. 46, marked 
“NSC. 5 M.” south of the river. That on Gannet and Burns’ 
map from the 59th mile tree to the Tennessee River is 6.02 
miles. On the map of 1821 it is six miles. This is to the 
mouth of Slick Rock Creek. By the Tennessee contention it 
is only five and one-half miles to the river. By the North 
Carolina contention the line corresponds with the 1821 map. 
To the Big Fodder Stack from the south line of the Tennes- 
see River is 6.67 miles and from there to the Junction 3.3 
miles, or 9.97 in all. And from the 59th mile tree to the 
Junction by our survey is 15.99 miles, and 16 miles by the 


52 


map of 1821. By the Hangover from the south bank of the 
Tennessee River to the junction is 8.51 miles, and from the 
59th mile tree 13.98. That the stream marked creek on the 
map of 1821 cannot be anything else than Shick Rock Creek. 
The mouth of Cheoah is more than one and one-half miles to 
the east and could not possibly be the stream marked “creek.” 
That Slick Rock is almost at right angles to the Tennessee 
River. Cheoah at a very acute angle. Cheoah runs south- 
east and the creek southwest. The map of 1821 is a map of 
a line, not of the general topography. That the topography 
was simply sketched in. That it would have taken months 
to have accurately mapped that country topographically at 
that time, and that Hale’s map is very inaccurate, and he 
details the inaccuracies of that map. There were several 
ridges omitted, especially one leading from Big Fodder Stack 
to Slick Rock Creek, and it does not represent Slick Rock 
Creek accurately, nor the heights of Fodder Stack and Hang-- 
over. Also in other respects it is inaccurate. 

That the first knob on the Fodder Stack is only a mile 
from the river, and that you have to go on Hangover three 
miles to reach that altitude on the ridge between Slick Rock 
and Bear Creek. That the first peak on Fodder Stack Ridge 
is 1,700 feet, while at that distance the first peak on the other 
ridge is 800 feet. That there is no doubt in his mind that 
the Commissioners went up Slick Rock Creek and that in the 
Tellico region from Laurel Top they went down the State 
Ridge, crossed the Tellico River and up Jenks Ridge. That 
the marked trees alone would show that the line went up 
Slick Rock Creek. That the map of 1821 alone would show 
it. And without either, the Commissioners, in his opinion, 
would have naturally selected it. And the same considera- 
tion is applied to the State Ridge. That it was not possible 
to reconcile the 1821 map with the Tennessee contention, and 
it tallies exactly with the North Carolina contention. And 
that by the courses and distances on the map of 1821 they 
eould locate the objects, for instance Big Fodder Stack. 

On cross-examination this witness says that he got Hale’s 
elevations from his testimony, and that you approach the 
Tennessee River from the north in a southwest direction. 


53 


That he surveyed from the 101st mile to Laurel Top. He 
says he could locate the line with the aid of the 1821 map. 
Tree No. 30 is a chestnut oak thirty inches in diameter, two 
hacks and a blaze on the west side and the same on the east 
side. 

That there are no State Line trees on the line around Tellico 
River. 

On re-examination he says the straight line from the 101st 
mile tree down is an undisputed part of the line. That sur- 
veyors in mountain surveying take a general bearing, but in 
measuring, measure around meanders. That if you go around 
Tellico River that you deviate from the plat of 1821. That 
he tested Burns’ notes from the Junction to Big Fodder Stack 
and on down the Slick Rock Creek to its mouth. That he had 
the geodetic co-ordinates of Hayo to Fodder Stack. He says 
that he wanted to prove to his own satisfaction whether or 
not the work was correct and from these geodetic co-ordinates 
he computed the air line distance between Hayo and Fodder 
Stack and found a difference of only six feet out of nearly 
twenty thousand feet between his computation and Burns’ 
notes, and this proved that the survey around Slick Rock 
Creek was absolutely correct. The proper interpretation of 
the 1821 map is that the line follows the creek. That the 
hachures are sketched in. That it would not be possible in 
running a line from Virginia to Georgia to follow the water 
divide and make it anywhere near Tennessee. 

On page 444 he says that there (is) nothing misleading in 
the plat of 1821. 

Upon further examination by General Cates, Attorney Gen- 
eral of the State of Tennessee (Record 445) he says: 


“T was deputed by the United States Government to make 
this survey.” 

On page 446 he corrects some of the testimony he had given 
as written out, and on 447 states that the map of 1821 by 
courses does not go around the Tellico River. 

On the following pages he corrects some statements about 
maps that were taken from the Congressional Library. On 
452 his attention is directed to the Cession Act and on 454, 
he gives courses and distances from the 101 mile south and 


54 


afterwards reiterates that the map of 1821 according to direc- 
tion would not go around Tellico. That he surveyed from the 
turnpike 3144 miles northeast of the river to the 59th mile, 
and tested Burns’ work from the river to the 314 mile point 
and gives the courses and distances from the turnpike to the 
59th mile tree. 

That Hayo Peak is southwest of Hangover Peak and that 
the average of Fodder Stack 1s equal to Hangover ; that Strat- 
ton Bald is one-half mile from Junction and from Hayo to 
Junction is 244 miles. That Hangover Peak is little less than 
six miles from the Tennessee River. That the sourwood tree 
was decayed. That Fain was with him on the lower part of 
the survey and pointed out some trees. That the State Ridge 
in that section ends about a quarter of a mile from Tellico 
River. That the 86th mile tree is about two hundred feet 
above the river. That the line around McDaniel Bald could 
not possibly agree with the map of 1821. That the Tennessee 
River at the locality of Tree 29, is 1,200 feet above sea level, 
and he then proceeds to give elevations taken from the Gov- 
ernment contour map. That on the spur or ridge that leads 
from Slick Rock Creek up to Fodder Stack the timber is prac- 
tically destroyed by fire. 

On page 474 he states the divergence from the stream 
marked “creek” as shown on the map of 1821. That Hang- 
over Peak is 444 miles from Cheoah River to the nearest point 
northeast. It is north 45 degrees east. That in surveying 
the line along the creek, Burns crossed the creek twenty-nine 
times. That the general course of the creek is southwest, and 
at a point half a mile from the river it runs 2,000 feet due 
west, or nearly due west. 

On page 478 he says that no map is made that is absolutely 
correct, and that in making their survey, (the Gannet and 
Burns survey) they followed the meanders. On the map of 
1821 the creek is not drawn carefully. That there may be 
a difference of opinion as to which is the main ridge on the 
southwest side of the river. 

On page 483 he says that Brazier’s map of 1833 shows the 
line going up Shick Rock Creek. That Cheoah River is sev- 
eral miles east of the line. That the course down the State 


55 


Ridge agreed very closely with the 1821 map; so closely that 
if left no doubt in his mind as to where the line runs at that ’ 
point. At the Tellico River neighorhood the United States 
contour map does not tally with the 1821 map. According 
to the scale of that 1821 map, an inch is 13,200 feet. That 
the map only shows in a general way the summit of the moun- 
tain and some of the streams and rivers. That it is custom- 
ary in making such maps to sight from one common object 
to another, and on page 492, he explains again that the total 
bulk or mass of the Fodder Stack Ridge would be greater 
than Hangover Ridge, which is short as compared with the 
main Fodder Stack Ridge. That the Little Fodder Stack 
strikes the Tennessee River one mile below Slick Rock. 

He then goes on to give certain altitudes taken from the 
Government conteur map, including altitudes on the Ridge to 
Cheoah and the one spur to the mouth of Cheoah, and reiter- 
ates that the ridge to Cheoah averages higher than even Hang- 
over and Big Fodder Stack. He then mentions the ridge on 
the north to a point opposite the mouth of Cheoah and states 
that it averages as high as Smoky Mountain, but for the 
Tennessee River, which would seem to be a continuation of 
the ridge that goes to Hangover from the mouth of the Cheoah. 
That there are several other ridges from Hangover to the 
northeast, and one approaching the mouth of Slick Rock about 
a mile long. It commences at the river with a bluff about 
seven hundred feet high, and there are bluffs all along the 
south bank to the Slick Rock Creek, so it would be difficult 
to walk or survey a line. That the distance of 6.02 miles 
from the 59th mile tree to the bank of the river coincides with 
the 1821 map. That the words in the report of the Commis- 
sioners from the Tennessee River to the main ridge, and along 
the extreme height of the same to the place where it is called 
Unicoy, would not indicate that when you crossed the river 
that you were then on the main ridge, and that in his opinion 
there is no main ridge until you reach the Junction. That 
the ridges spread out like the fingers of a hand and that the 
black line at the center of the shading on the original map is 
the State Line, and that that line strikes exactly in the mouth 
of Slick Rock. That the certified copies of that map differ 


56 


from the photographic copy in that respect. That by taking 
-a straight line from the 64th mile tree south 75 degrees west 
320 poles, you would land right at the mouth of Slick Rock 
Creek. That in looking towards Cheoah you were looking 
southeast on the left hand. That Shek Rock is on the right 
band. That the Cheoah would be 50 degrees east, and from 
the 64th mile tree more than a mile to Cheoah. That a line 
south 75 degrees east for a mile would not reach Cheoah, but 
would land you on the south side of the river a quarter of a 
mile from Cheoah. 

On page 500 the Davenport notes are taken up, and the 
courses and distances and objects named in that report called 
to the attention of the witness, and he demonstrates that the 
calls would not in any sense correspond with the line up 
Cheoah. It would not be possible to fit them to Cheoah, and 
that by going up that river you would be going away from 
Hangover Ridge further and further all the time. That 
Citico is on the west side of the Fodder Stack and runs west. 
That at the 72nd mile you would certainly be between Slick 
Rock Creek and Citico Creek, at least five miles from Cheoah, 
and at a point seven miles up the creek line, the point men- 
tioned in the notes would be ten miles from Cheoah, and a 
point seven miles up Cheoah would be six miles from the 
Hangover Ridge. 

He reiterates that the Slick Rock Creek is incorrectly 
sketched on the 1821 map. ‘That the courses and distances 
of the Davenport notes from the 72nd mile would land you 
at the Junction, and that the Commissioners evidently did not 
reach the main mountain until they reached the junction. 

That the course below from County Corners is southwest. 
That the other course claimed by Tennessee is almost exactly 
southeast. That the State Ridge goes southwest and the Com- 
missioners report says southwest. That the 86th mile Holly 
tree is several hundred feet southwest of Tellico. That by 
the Tennessee contention you would not reach that tree at all 
by a mile and a half. That the nearest point would be Jenks 
Knob. That the Davenport notes as to the 86th mile tree cor- 
respond with the State Ridge Line. 

He then describes marks on that tree and goes on to state 


57 


that you could not reach the 101st mile in going around the 
Tennessee contention in 101 miles. That Grassy Top Peak 
is a short distance southwest of County Corners, on the State 
Ridge, and is 5,200 feet high. Huckleberry Knob is three 
miles northeast of Laurel Top, 5,500 feet high. Hooper Bald 
is one mile northeast of Laurel Top and is 5,500 feet high. 

On further cross-examination, he says that the State Ridge 
is southwest, and for two miles is higher than the other ridge. 
That from the plat of 1821 and his other information, the 
witness could sce that the line could not diverge as claimed by 
Tennessee. 

He then speaks again of Tree No. 30, and states on page 
511 that he was six weeks on this survey. On page 513 he 
gives the courses and distances of the 86th mile tree across 
the Tellico River. On page 517 the Davenport notes were 
taken up again, and on page 518 the subject is pursued with 
reference to the incorrect tracing of the creek. On page 519 
he states that Tree No. 25 is supposed to be the 64th mile 
tree. That the line from the 64th mile is nearly due west. 
That Tree No. 25 is 1,550 feet from the river. That in all 
maps between successive mile marks there are a number of 
turns or angles not shown on the map. 

On pages 522 and 523 and 524, the altitudes are shown by 
the Government contour map and are gone into further. On 
526, the witness says that he had never seen the original of 
the 1821 map, but speaks of the two mile circles very close 
together at about the 39th mile as being indicated for the same 
mile circles. 

That Cold Spring Knob is 3,500 feet high and three miles 
from the river, and the subject of altitudes is then continued. 

Commencing on Record, page 529, Burns notes on the sur- 
vey north of the river are introduced, and on page 539, Gannet 
and Burns’ notes from the 101st mile northeast to Jenks 
Knob. 

On page 692 of the Record, this witness testifies with refer- 
ence to the Davenport field notes, and says with reference to 
the wording “crossing the Tennessee River to a large white 
pine, south side of the river at the mouth of a large creek, 
. 65th mile,” he recognizes as leading to Slick Rock Creek. 


d8 


Lhat that call means at a large white oak at the 64th mile; 
that trom the 64th nule to Lree No. 29 is south 30 degrees 
west, and that it 1s southeast to the Cheoah River. That the 
field notes fit the 1821 plat, but do not fit Cheoah because 
its situation would lead southeast. ‘That there is no stream 
opposite Tree 29. There is a bluff there. That Yellow Ham- 
mer Creek runs into the Cheoah and there is no creek for sev- 
eral miles below Slick Rock; and that if you went aiong 
Cheoah you would cross no stream in following any ridge. 

Jn explaining the ditterence between the marks and that 
straight line, he said tiat the surveyors evidently sighted from 
the blutt north of the river to Slick Rock Creek, but not being 
able to tollow that sight, traversed along the shore of the river 
and crossed it at the first available point. | 

that the line south 75 degrees west trom the 64th mile tree 
corresponds with the course shown of that ne on the map of 
1521, and would be in the hne with Fodder Stack. ‘Lhat 
Cheoah Liver could not be crossed and re-crossed except by 
boat. That according to the Davenport field notes the creek 
is not mentioned after the 70th mile, which indicates that 
they then left the creek. That there is no creek in that coun- 
try of the shape of Slick Rock, as depicted on the map of 
1821; that the creek was evidently merely sketched in. 

On page 697, he says the line is accurate, but the river and 
sketching carelessly done. That the field notes aud the map 
of 1821 correspond with the lne as claimed by North Caro- 
lina, but not at all with the Tennessee claim. ‘Lhe field notes 
at the end of the 72nd mile say, *‘on a ridge between the afore- 
said creek and Citico Creek,’ which would correspond with 
the line up Slick Rock Creek. That Citico Creek does not 
head on Hangover, and it cannot tally with the Tennessee 
contention. ‘that the notes confirmed the 1821 map and 
agreed with burns’ map, and that Burns’ map of a portion 
of the line made by the Commissioners of 1821, tallies with 
the original map of 1821. That at the 86th mile, the Daven- 
port notes call for a Holly tree, which is the tree heretofore 
designated as the 86th mile tree. That the notes also con- 
firmed the North Carolina contention at Tellico. That the 
line north of the river is south 49 degrees 2414 minutes 


59 


west, but south 30 degrees west in crossing the river, accord- 
ing to the Tennessee contention. That the 59th mile tree is 
marked “59 M.” ‘This witness verified Burns’ notes from 
the 314 mile point of beginning of Mr. Burns to the river, 
and the notes of the survey of Shick Rock Creek and the 
courses and distances, and identified the trees. That the line 
practically follows the creek. That Fodder Stack is south 
45 degrees 50 minutes west. 

On page 708 that the last call in the 72nd mile by the notes 
as south 30 degrees west, should be 30 degrees east. He says 
this mistake would not throw the whole plat out, but would 
only swing the course a little. The mistake is in one eall only. 

On page 711 he repeats that the surveyors must have sighted 
from one summit to another, but measured along the meanders 
of the mountains, which he states again on page 712, and 
adds that you have to generalize in every survey. That the 
error at the 72nd mile would not disarrange the whole sur- 
vey. That you would have to correct the error and accept 
the marked line, and explains what approximation means in 
surveying, and on page 714, what he means when he speaks 
of the course being approximately correct. He further ex- 
plains why there was no error from the 53rd mile to the 
Equoneetly Path. And further on page 717 explains his use 
of the term “approximation.” 

Among the local surveyors called by the complainant, was 


R. W. COLLETT, - 


who testified (Record 547) that he had surveyed the line on 
the State Ridge and remembers the holly tree at the 86th mile, 
and gives certain grants issued by the State of North Caro- 
lina in that territory, which he had surveyed, and files a map 
of his survey, facing page 550. 


W. P. CHAMBERS, 


who lives in Bradley County, Tennessee, had been County 
Surveyor of Monroe County eight years. He had had some 
experience in trying t» arrest a man on disputed territory 
on a Tennessee writ, but abandoned it. He had in about 1882 
made a survey of the land between Slick Rock Creek and 


60 


Hangover for one W. L. Albright, who directed him to survey 
from there. About that time H. M. McCroskey began talking 
about making an entry there, and the witness informed Mc- 
Croskev what he was doing. Both Albright and McCroskey 
made entries, but the Governor refused to issue any warrant. 
This witness says that he had the map of the Ocoee District 
and that he started a survey north of the river from State 
Line marks there. This was a subsequent survey made re- 
cently in connection with a Mr. Mayfield in the interests of 
Mr. Cozad. 

He says from the north when you look directly south, the 
Hangover Peak shows up a little more prominent, but in a 
general way the line up Shek Rock Creek and Fodder Stack 
seems to be the most prominent way to get out, because if you 
cross the river immediately you butt up against a considerable 
bluff, and when you get up to Hangover, you have a decline 
and it is so rocky you cannot get up there. That it 1s rocky 
on Slick Rock Creek, but as you gradually walk to Fodder 
Stack Lead, it has the appearance from there of being a smooth 
ridge. That the line seems to be in the general course of the 
State Line on the North, while Hangover is south. That he 
found Tree No. 29 and just opposite there was rough steep 
mountain land. That in going down the north side of the 
river towards Slick Rock Creek he also found a chestnut oak 
marked with three hacks, and a httle further found a maple 
marked. And just below the mouth of Slick Rock found a 
gum that was marked. All of these trees were marked with 
old marks. 

That the next day he resumed work at the mouth of Slick 
Rock Creek and that he found marked trees up the creek and 
up the ridge to Fodder Stack and from there to the Bald. 
That the marked trees on Slick Rock satisfied him that the 
line went up that creek. These marks seem to have been 
made at the same time, with the same instrument, and in the 
same manner. 

On page 557 he says he made an unsuccessful effort to sur- 
vey Hangover. On 558 he speaks of having been told about 
the ne running up Slick Rock Creek by Milligan, which 
we believe has already been mentioned. He then goes on to say 


61 


that the map of 1821 takes you up Slick Rock Creek, and 
from there to big Fodder Stack. On 550 he says that the 
trees he found marked on the north side of the river between 
Tree No. 29 and Slick Rock Creek were marked on the north 
side running in a westerly course; marked as if going down 
the river, except the gum, which is below the mouth of Slick 
Rock Creek. Ue then describes how surveyors mark trees. 
On 561 that the marks on the gum indicated that the marker 
crossed the river and went up the creek. That the Ocoee map 
shows the line going up the creek, and that there are no grants 
in Monroe County, Tennessee that call for land beyond Slick 
Rock Creek. 
JAMES CRISP (Record 562). 


says that he went out with one H. M. Kent, a surveyor repre- 
senting the Babcock Lumber Company. ‘That they went on 
the north side of the river and got onto the undisputed line, 
but had no instruments with them, and that Kent took a stick 
and sighted back on the line and then sighted in the other 
direction on the same bearing, and that it pointed right to 
Big Fodder Stack and the Slick Rock Creek. That they then 
went down and struck the Tennessee River and investigated 
Slick Rock Creek and they reached the conclusion that the 
line ran up Shek Rock Creek and Big Fodder Stack, and 
Kent said he would so report. ‘That they investigated the 
Ilangover Ridge but found no old marks. 


FRANCIS H. LOVINGOOD, (Record 565). 


This witness speaks of the Tellico Country first, but says 
that he began his survey at the mouth of Slick Rock Creek 
and went up the creek five miles and then up the ridge to big 
Fodder Stack and thence on around to County Corners and 
thence up the State Ridge running in a southwest direction, 
and that he has notes of that survey and that he found State 
Line trees along that line and found the 86th mile holly tree, 
twenty-one miles from the Tennessee River. That he blocked 
some of the trees and counted the growths and satisfied him- 
self that the marks were State Line marks of 1821. 

From Laurel Top the State Ridge is continuous and froin 
County Corners to Uniecoy the ridge seems to be the same 


62 


ridge. That although he searched, he never was able te find 
any State Line marks on the line around Tellico River. That 
in order to take that line as claimed by Tennessee, you would 
have to run southeast at a right angle to the State Ridge. 
That there is a spruce pine near the 86th mile tree with three 
hacks on the southwest side. That he found marks on the 
Slick Rock Line and on the ridge. During this survey, he 
says on page 570 that running up Shick Rock five miles they 
marked a five mile tree there at the point where they turned 
up the ridge. 7 

On cross-examination, he says that this survey was made 
in 1897, and that it seemed to be the understanding of the 
citizens there that Slick Rock Creek was the line. Hyde, an- 
other surveyor, was with him on this occasion. That they 
formed their opinions separately but agreed as to the true 
State Line, and they found plenty of marked trees on it, and 
at Tellico they decided from the marks that State Ridge was 
undoubtedly the line. 


C. L. SLAGEL (Record 753). 


who resides in Macon County, North Carolina, says that he 
was with Burns on one oceasion. He says they could see Slick 
Rock Gorge from a point 600 feet north of the Tennessee 
River, and that following the calls of the Davenport notes the 
stream marked ‘Creek’ could be no other than Slick Rock 
Creek. That he found a birch described in the notes at the 
67th mile, a sycamore at the end of the 68th mile, and a maple 
at the end of the 69th; a birch at the end of the 70th mile 
and an old tree and some old marks, old enough to have been 
made in 1821. 

In general he corroborates Mr. Burns as to the trees men- 
tioned in the Davenport notes as they discovered them. That 
they then went to the junction then turned and came back 
by Hangover, and searched for trees, but found no State Line 
trees. That the Davenport notes carry the line along the creek 
and that nobody who made those notes could have made them 
unless he surveyed along that creek. That they could not fit 
the Tennessee contention at all. That about 614 miles south- 
west of the Tennessee River they bend to the left, whereas 


63 


the Tennessee line bends to the right; and the notes confirm 
the North Carolina contention. 

On page 765 that the Fodder Stack is the main ridge, and 
he speaks of the bluffs just opposite Tree No. 29. 

On page 775, he says that in his opinion the streams and 
mountains on the map of 1821 were merely sketched in. That 
the Davenport notes generally follow the stream. On page 
777, that from a point three miles northeast of the river, the 
Hangover does not appear to be the main ridge. That it is 
not as well a defined ridge as the other towards the river. 


H. S. HAYS (Record 794). 


This Hays and J. C. M. Bogle surveyed the line back in 
1896, or thereabouts, for use in the original hearing of the 
ease of Hebard against Belding and others. They were seven- 
teen days on this survey and on searching on Hangover ridge 
they found no State Line marks. On page 796, he says that 
the black oak spoken of by Hale is not a State Line tree. He 
describes the lines and furthermore states that the sourwood 
was not a State Line tree and gives his reasons, and adds that 
there were no State Line trees from Big Fat Gap to the Junc- 
tion. That the main lead of that ridge goes to the Cheoah 
River from Hayo. On 797 he says that he ran the line up 
Slick Rock Creek to the ridge and to Big Fodder Stack and 
thence to the Junction, and that he found forty-one marked 
State Line trees on that line; ten fore and aft and thirty-one 
side line trees, and that there were twelve State Line trees 
from Shek Rock Creek and Big Fodder Stack Gap Branch. 
That Tree No. 1 was a cucumber and that Exhibit “A” Block 
was from that tree. That the marks were seventy-six years 
old, this survey having been made in 1897 instead of 1896. 
That the second tree was a birch and the third a poplar, and 
trees 4, 5 and 6 were birches on the east side of the creek, 
State Line trees. No. 7 was a lynn on the east bank of the 
creek. The 8th was a spruce pine standing on the east side 
of the creek, and Block B, was from No. 8, these blocks hav- 
ing been introduced in the Hebard case. Nos. 9, 10, 11 and 
12 were spruce pines on the east side of the creek, State Line 
trees. 


64 


On the ridge to Fodder Stack and to the top of Big Fodder 
Stack, they found five fore and aft and eight side line trees. 
That No. 14 was a spruce pine about 12 poles from the mouth 
of the creek; No. 15 was a spruce pine side line tree; No. 16 
Was a spruce pine marked as a State Line tree. 

That the general course of the creek carries you up the 
ridge to Fodder Stack. That No. 17 was a spruce pine 
stump, fore and aft. No. 18 was a spruce pine fore and aft; 
No. 19 a spruce pine side line tree. 

He then gocs on locating and describing all of these trees 
up to and including the 41st, several of which were blocked 
(on pages 800 and 801), and states on page 800 that from 
where the ridge strikes the main lead to the Fodder Stack 
and to the junction he found seven trees, two fore and aft 
and five side line trecs. That these forty-one trees all had 
old marks on them. All were marked with the same kind 
of axe. That the marks on Hangover were not with the 
same kind of axe, but an axe such as Piercey used, and that 
there were no marks there earlier than 1851. That the trees 
along the Fodder Stack are mostly chestnut and oak. That 
the chestnut does not hold marks as well as other trees. That 
the Ocoee land district map corresponds with this witness’s 
survey, and that on the Ocoee map from the mouth of Slick 
Rock Creek, to the point where the line leaves the creek is 
1,160 poles; on this witness’s map, 1,120 poles. That the 
North Carolina contention is correct. 

On cross-examination, he says he looked first for the Forked 
Ridge, which leads from Big Fodder Stack to Slick Roek. 
That the tradition was that the line ran up that ridge. That 
Little Fodder Stack would average higher than Hangover. 
That Tree No. 1 that he mentioned was about one pole west 
of the creek. He then re-locates the other trees again for the 
cross-examiner. 

On page 808, he says that they had to cross the creek and 
rc-cross it several times going up the creek, because it was so 
rough, and on re-examination (809), he says that the ridge 
running from Hangover to Cheoah is the main ridge. He 
then sets out the fact that he made a survey of the Peet and 
Gilbert grants, of which a plat is attached, which covers a 
large part of the property that is disputed. 


65 


J. C. M. BOGLE (Record 812). 


This gentleman was with the previous witness. He states 
that the trees mentioned by Hale and Wilson on Hangover 
were not State Line trees and had no State Line marks on 
them and were not over thirty or ferty years old. That the 
black oak mentioned by Hale is three quarters of a mile from 
the river and had no State Line marks, and the marks were 
not old enough. That the marks on the sourwood tree were 
irregular and made by a broader axe; were only forty or 
fifty years old and were not State Line marks. That a black 
oak mentioned by Hale as being 1 mile and 63 chains from 
the river had hacks on it fifteen or eighteen years old. That 
at a mile and a half he found the chestnut oak that Hale 
speaks of, and that it was not marked, just hacked, and an- 
other that they thought was marked for a North Carolina 
corner. That the marks on the North Carolina line as he 
and Hayes ran it, were very old, and that he was with 
Hayes from the mouth of the creek to Tree 26, and he 
corroborates Hayes as to the marks. 

On page 817, he speaks of the Ocoee District map, which 
was made in 1837, and shows a line corresponding with the 
line up Slick Rock Creek. That in order to cross the river 
at 65 miles, you would kave to go to Slick Rock Creek. 

On 824, he depicts the marks on the sourwood tree and 
states that the main ridge as called for by the report of the 
commissioners, begins at the Junction. 


H. P, HYDE (Record 825) 


who lives in Graham County, made a survey in 1897. He 
says that he ran up Slick Rock Creek five miles and 101 poles 
to the ridge that leads to Big Fodder Stack, and thence to the 
Stack and to the Junction, and that he found State Line 
marks all along that line; and on the point of the spur 34 
poles from the point on the Slick Rock Creek found a spruce 
pine with marks of seventy-six years ago. 

He then speaks of Exhibits Nos. 1 and 2, which are blocks 
taken from their survey, and that beginning at the mouth ot 


2780--5 


66 


Shek Rock Creek extending to the top of Fodder Stack he 
found five or six trees marked as fore and aft trees, some of 
which had been blocked, and many side line trees. That he 
had recently surveyed along the Hangover lead, having Hale’s 
notes with him and copies of the depositions of Hale and Wil- 
son and Muller, and that he followed accurately the courses 
and distances and located his trees. That he found the black 
oak or red oak, about three-quarters of a mile from the river 
and states how it was marked; that it was not a State Line 
tree and explains why. He also testifies in a like manner 
about the sourwood and describes its marks, and says that 
they are not State Line marks. That he found the hickory 
noted by Hale as running 1 chain west of line, running from 
his station 114 to 115. That it was not a State Line tree. 
That it was a line entry tree of Entry 920 of North Carolina. 

On page 829, he states that he found all Hale’s trees. That 
he found no State line marks except possibly on one tree, but 
these marks he discovered were not old enough, but there 
was plenty of large trees on Hangover Lead. . 

On page 832, he states that Hale’s map is incorrect in giv- 
ing outlines of creek and leads out the ridge up to Fodder 
Stack. 

On Record, page 833. 


He PLY DS 46 -recaliad: 


He says that from tree 29 to the mouth of Slick Rock is 89 
chains. (It may be proper to remark that the chain these 
surveyors used was two poles.) That the Spruce pine men- 
tioned near the mouth of the creek had been burned and the 
marks could not be discovered. That the Ocoee plat shows 
that the east line is Slick Rock. 

This witness says that he again inspected Hale’s trees, 
which only cenfirmed his former statement. 

On 838, he speaks of them again and states that the marks 
on the black oak were made with a smaller axe than Slick 
Rock marks. Also on page 839, he continues about Hale’s 
trees, ; 

This witness states that in 1883 he surveyed North Caro- 
lina entry No. 418, for Cooper, an introduces his original 


67 


certificate of that survey. That according to Hale’s map, the 
distance from the 61st mile tree to the river is 3 1/2 miles. 

On page 843, he says that the fore and aft tree on the north 
side of the river is marked on both sides going towards Slick 
Rock Creek. That the main ridge (page 844) commences 
at the junction. . 


REUBEN CARVER (Record, 850) 


testifies first as to a lease from Belding and associates, claim- 
ing under their North Carolina grant to John Debity and 
John Debity, Senior. This gentleman was along with Hayes 
and Boyle. 

On page 851, he says: 

“The conclusion I reached as a surveyor was that the State 
hne ran up Slick Rock Creek and thence up the ridge and 
over Big Fodder Stack.” 

That it was not his business to keep tally on the trees, and 
he did not see them all, but he did see fifteen or twenty. That 
they searched over Hangover for State line trees and found 
none. He speaks specifically of the black oak and the sour- 
wood mentioned by Hale. On page 852, he says that the 
ridge to Cheoah is the biggest of the Hangover Ridge. This 
witness was recalled (Record, 854) and says that he had 
made a reéxamination of the Hangover lead and Hale’s trees 
and confirmed his former statement. 


DEFENDANT’S EXPERT WITNESSES. 
W. D. HALE, a Tennessee surveyor. 


Hale had been a witness in the old Hebard case and in the 
bill of review phase of that case and has testified further in 
this case. His testimony in the original Hebard case by stip- 
ulation has been incorporated into this record and commences 
at page 1311. He says that he was employed first by Heb- 
ard, and in December, 1895, and January, February, and 
April, 1896, attempted to locate the State line in connec- 
tion with O. W. Muller, J. K. Wilson, and two other Tennes- 
see surveyors. 


6 


OB 


That they went about three miles north of the river where 
the line is undisputed, and commenced their survey there ; 
followed the line in a southwest. direction, tracing the marks 
to the river, and finding the line marked with two hacks above 
a blaze, and exhibits a map which was Exhibit “A” in that 
original case as a result of his survey. And it is also Ex- 
hibit “A” attached to the answer in this case. 

He continues after locating the line north of the river: 

“TY first examined the spurs of the Hangover Ridge where 
they bluff off to the river, because the butt of that ridge is 
directly opposite the butt of the ridge on which I found the 
State line marks north of the river.” 

He was governed to a great extent by the topography. That 
looking southwest from the butt of the ridge north of the river 
on which the line is marked, he first looked for the main ridge 
and saw two prominent ridges, the Hangover and the Fodder 
Stack. He says that Hangover is decidely the highest and 
most prominent. He then looked for the route to Hangover 
and saw a large continuous ridge reaching from the Hangover 
Peak to the river directly opposite where the line is marked 
north of the river. Next he observed the course. The 
Hangover and the ridge to it are a little west of south, while 
to reach the Fodder Stack where it strikes the river, he would 
have to go northwest and down the river one-half mile and 
from there nearly due west more than three miles. (In go- 
ing these three miles he alludes to reaching the Little Fodder 
Stack, which appears in evidence repeatedly throughout the 
case. ) 

He says Hangover Ridge more generally follows the course 
of the State line north of the river. He then, page 
1313, mentioned many trees, intending to say that these trees 
are State line trees on that ridge, and in particular mentions 
a black oak on the Hangover Ridge three-quarters of a mile 
from the river. 

On page 1315, he speaks of having gone on to Slick Rock 
Ridge and having then descended to Stiff Knee Gap three 
miles and 67 chains from the river. From Stiff Knee Gap 
he climbed to Stiff Knee Knob 8 3/4 of a mile from the river 
ascending 800 feet in 55 chains, then descending to the Lit- 


So 
a 
~~ 


tle Stack Lead, to the head of Beardon Shaft Lead, which 
is the continuation of the Fodder Stack Lead; then ascended 
to the Little Fodder Stack 414 miles from the river; then 
descended to Wild Cat Gap and other gaps and knobs to Big 
Stack Gap 7 1/8 miles from the river. That 6.78 miles from 
the river he found a meandering line marked with two hacks 
and a blaze, but found that they followed trails regardless of 
the tops of ridges, and found the marks to be only twenty- 
three years old. 

About 8 miles from the river he found white oak marked 
with two hacks and a blaze; very old marks; and then men- 
tions further along a chestnut oak with the same kind of 
marks. He then continues that there is a bend in the Ten- 
nessee River below the mouth of Slick Rock Creek, and that 
if the land in dispute is in Tennessee, it is in the Ocoee Land 
District. | 

On page 1321, he mentions the sourwood tree which he 
found at Sourwood Gap. 

On cross-examination (page 1326) in answer to question 
107, which directed his attention to the question as to where 
the Commissioners of 1821 had located the line, and his an- 
swer in his examination in chief, “On the Hangover Lead,” 
this question was put: 

“Now I ask you in view of your testimony given today on 
cross-examination, whether you pay any attention whatever 
in forming your judgment, to the lines run by you, viz: ‘The 
Hangover Lead or the Fodder Stack Lead ? ”’ 

To which he answered: 

“No. My running the line did not affect it.” 

“Q. 108. Repeating the first part of the first question, 
and in view of your testimony given on cross-examination, 
will you state what elements in the question asked you on di- 
rect examination, viz: No. 33, you relied upon in forming 
your opinion ?” 

“A. The Commissioners’ report and the topography.” 

“Q. 109. If it had not been for the Commissioner’s re- 
port, would the topography have been of any service to you in 
forming your opinion 2” 


“A. It decidedly would.” 


70 


“Q. 110. .Why 2” 

“A. Because it was the most natural boundary, the most 
prominent ridge.” 

On page 1331, he says the mar ne on the sourwood tree were 
very old marks, but at that time he does not mention that the 
tree was decayed inside, so that the age could not be de 
termined, and on page 1333, says. “I don’t know that that 
sourwood tree was marked as a State line tree.” 

He states that he has been twice back to Slick Rock Creek 
since he had given his deposition, and that he had blocked 
the sourwood and the black oak, which by the way was a red 
oak. On page 1336, he says that the black oak was on a spur 
leading up to the Hangover from about the mouth of Slick 
Roek Creek and on the turn in the ridge and that that turn 
marks an angle larger than a right angle. He does not doubt 
that the sourwood and the black oak were State line trees. 
On pages 1338 and 1339, he tells how he notes the age and 
then states that the heart of the sourwood had been rotted 
out and then begins to tell why the Ocoee District map stopped 
at Slick Rock Creek. As given on page 1339, this reason 
was that the surveyors were tired and worn out and that the 
eround east of the Slick Rock, Creek was so steep and rough 
that they abandoned the survey and did not regard the creek 
or the limit of their. survey as the State line, but regarded the 
ridges east of the Slick Rock Creek as the State line. He 
claims to have obtained this information from a Mr. Harvey, 
who claimed to have acted as chairman on the original survey 
sectionizing the Ocoee District. 

On page 1339 he takes up the matter again of the marks 
on the trees of the so-called Slick Rock line, and claims that 
they are not State line marks. On page 1124 is his testimony 
on the bill of review in the Hebard case, and on 1125 he states 
that the 26th mile tree is at an undisputed point on the State 
line and that the 59th mile tree is also. At this time, the 
map of 1821 had been found and he had possession of it and 
testifies about it. On page 1126 he says it is not possible to 
get accurate angles from the 1821 map. Inasmuch as one 
hundredth of an inch on that map represents a distance of 
132 feet; this is not strange. That they can only go approx- 


ca 


imate courses and distances. He commenced at the 59th 
mile tree with the map of 1821 and tried to run the line by it 
and got into North Carolina and then into Tennessee back- 
wards and forwards, at one time a mile away from the line. 
That the map was no aid, but rather a hindrance. That it 
was not possible to locate the line up Slick Rock Creek with 
this map. That crossing the river at right angles as the map 
indicates, you would cross one-half mile east of Slick Rock, 
and taking the bearings you would be crossing and recrossing 
the ridges and foothills, and not be on Slick Rock Creek and 
except in one or two places you would not get closer than 
one-quarter of a mile to Slick Rock. That the map shows 
that the commissioners crossed at some stream. That it must 
have been Cheoah River. 

On page 1127, he says the map is only a sketch map and 
that they have’sketched the Cheoah River and called it a 
creek. 

On 1128 he explains why he thinks it is Cheoah. He 
says that the track of the Commissioners of the marked trees 
show that they struck the river fully a half mile east of Slick 
Roek Creek. That Cheoah River is the first stream of any 
size east of the line, and is the stream that would naturally 
show on the east side of the line. ‘That the description in the 
Cession Act of the State line from the Tennessee River to the 
main ridge would naturally take the Commissioners from the 
river direct from the point at which they struck it and crossed 
it, up the ridge, that is east of Slick Rock Creek and west of 
Cheoah River. He then describes the spur to Cheoah north 
of the river and states that it is the main ridge for some dis- 
tance, and that there (is) a ridge from Hangover to the mouth 
of Cheoah which leaves the Hangover about at Sourwood 
Gap, one mile from the river. 

The first of these spurs that he speaks of is north of the 
river; the second one south of the river, and he savs the two 
spurs, one on the north side and one on the south side, would 
be more convenient for strangers to follow trying to cross the 
river and reach the ridge on the south side. 

On 1129, he speaks of the Lester Ridge on the north side 
leading off toward the mouth of Slick Rock Creek. That the 


~] 
bo 


shading on the map of 1821 would indicate that the slope of . 
the ridge is on the side where the shading is, and that they 
were on a ridge. South of the river it would indicate after 
passing a certain distance from the river, that they were on 
the top of a ridge. 

On page 1130, he gives the angles, some five in number, of 
the map of 1821, and goes on to state that no ridge would fit 
the map and that none near the mouth of Slick Rock Creek 
would fit it. That it does not run in the right direction. That 
Burns’ map, Exhibit “D,” shows the line north of the river 
correctly. That the map of 1821 does not show it line fol- 
lowing the creek up to a spur, but does show that about a mile 
and a half from the river they were on some ridge. No sur- 
veyor could take that map and locate any ridge they were 
following. It is so inaccurate; the scale is so small, and 
there are no names for any mountains and streams and the 
witness would not know how to follow that map, even where 
the line is undisputed, as it is misleading. 

On 1132, he says that the general southwest course of the 
map is approximately correct, and as a sketch map to show 
that they followed the crest of a ridge and crossed streams, it 
is correct; but, as for showing where they followed the crest 
of the ridge or crossed streams, the map is not worth the paper 
it is written on. And further, that it does not show cor- 
rectly the ridges around Tellico. 

On cross-examination (Record, 1133) he says: “I took 
each course separately from the map. For twelve miles south 
of the river I took each particular course, not merely general 
bearings.” 

The map of 1821 for seven miles southwest of the river is 
south 44 1/2 degrees west. The next three miles is south 
20 degrees east. That from the river to Hangover is south 
8 degrees west and from there to the Junction is south 60 de- 
grees west. That he is not sure whether he used on his sur- 
veys a compass or a transit. 

On 1136, he says the map of 1821 indicates that they went 
directly across the river and at a distance of two miles they 
reached a ridge, and it is hard to tell from it whether they 
were on a stream or in its vicinity only. That it is very 


“ ov 


mountainous in the vicinity of both Slick Rock Creek and 
Cheoah River. That for the first two. miles it is hard to tell 
whether they were following a mountain or going up a stream, 
and that there is no possible way to locate the line except over 
Hangover. That on his map Hangover and Big Fodder Stack 
ranges are indicated and the lines of etching represent 100 
feet. That the stream on the map indicates from its trend 
that they must have sketched the stream on the left and that 
the map is utterly worthless. That you can not take the map 
and scale the courses and distances and follow the marked 
line, and that as an inevitable result they must have gone over 
Hangover. The map and report of the Commissioners con- 
sidered together indicates that. 

On 1142, he says that no stream comes in opposite tree 29. 
That Slick Rock is to the right and Cheoah to the left. That 
Slick Rock Creek runs northeast and Cheoah northwest. 

On Record, 1148, he is submitted to further examination, 
in this particular case, and says that since testifying he in 
September, 1910, made a further examination of the line 
from the 59th mile tree with one McNab and John L. Wil- 
hams. That at that time he only examined north of the 
river. And in the winter of 1909 and 1910, he was there 
with Muller and John L. Williams. He spent ten days go- 
ing from the 59th mile tree to Jenks Knob, all of which con- 
firmed his opinion. 

Facing page 1144 is his map, Exhibit “‘1,” of the line from 
the 59th mile tree to Jenks Knob. That it points out the line 
where undisputed and states that he took a portion of the Slick 
Rock survey from Hoyt’s survey. That he surveyed the 
ridge that runs to Slick Rock from the Hangover and the 
ridge to Cheoah is just sketched in. That he surveyed one 
mile of the Cheoah River. That along the McClelland sur- 
vey he found State line marks. 

On page 1149, he speaks of tree No. 30, mentioned by 
Burns and Gannet. That he had inspected that tree and 
blocked it and that it had two hacks above a blaze on the 
west side and the same on the east side, fifty-seven or fifty- 
eight years old, and that Exhibit No. 2 is the block he took 


~| 


out. That he only cut out the blaze and destroyed the hacks 
and left part of the block on the ground. - 

On 1152 he says that on Burns’ block taken from the other 
side of this tree, the blaze is only fifty-seven or fifty-eight 
years old. That it is often difficult to tell the age of marks. 
That marks may look fifteen or twenty years old and may be 
seventy or eighty. On 1155 he speaks of Tennessee grants 
to Parsons and Chambers made in 1850 and 1852, one line 
which runs by tree 30. He then gives the McCroskey grant, 
which covers the line in dispute in Graham County, and to 
Griffiths and Morton and the Ocoee Land District plat, and 
the records of the cases of Wetmore v. Styles and Stephen 
v. Lovingood are Exhibits 7 and 8 of this witness’s testimony 
here introduced. 3 

On 1161 he says that the main ridge is around Tellico. On 
1162 he gives the altitude of the mountains at different places 
on the State Ridge and some of the peaks‘on the Hangover. 
That the State Ridge is the highest and most prominent for 
about one mile, but that it does not reach Tellico River as a 
ridge. ? 

He then describes the Tellico Country and the 86th-mile 
tree and says (page 1,167) that he found no marks from 
there to Jenks Ridge. That Exhibit 1 shows the South Fork 
of Tellico. 

The Tennessee Act of 1844 is then alluded to, and on page 
1,168 Cain Creek. On page 1,171 he says the map of 1821 
from the 101-mile tree to Hiawassee River is 26 or 28 poles 
longer than the calls of the Commissioners. That 101st-mile 
tree is fixed and that the call from there is a south course 
for two miles and 220 poles, but it measures 2 miles 280 
poles. At page 1,172 he says the map of 1821 shows a line 
around the Tellico River, but removing the etching and tak- 
ing the line only on the map of 1821, it would conform to 
neither contention. On 1173 that taking the Cession Act of 
1789, the Code of Tennessee and the report of the Commis- 
sioners, he would have to follow the course of the ridge and 
the water-shed around Tellico from Hangover. That the 
water-shed ridge is the main ridge. It keeps continuous ele- 
vations but has some low knobs and deep gaps, but is the only 


=I 
Gt 


ridge from the Tennessee River south that complies with the 
requirements. On 1174 he says the map of 1821 shows that 
they followed the crest of a ridge and that the line appears to 
cross 60 poles below the junction of the creek with the river 
and there seems to be a ridge there. 

On 1,175 it would show that at two miles they appeared to 
be on the crest of a ridge, and on 1,176 he explains that the 
altitudes on his map are comparative. On 1,177 that the 
stream marked ‘‘Creek,” from the length of the stream and 
the general trend of the stream and ridges, he can only think 
was intended for Cheoah. 

On 1,177 he says that the headwaters of Tellico appear 80 
poles west of the line on the map of 1821. On 1,178 he 
states that nearly all of his surveying was done in 1896, but 
the State Ridge line in 1899. That the Tennessee conten- 
tion is right in his opinion. That between the Junction and 
Laurel Top the line is undisputed. That going northeast Fod- 
der Stack drops down about three hundred feet. You would 
not know when you reached it. On page 1180, on cross-exam1- 
nation, he says the line around Tellico is three or four miles 
too long. That it is five miles from Jenks Knob to County 
Corners by the State Ridge and 111-2 by Tellico. That 
from the culls of the Commissioners’ report he does not know 
how he would have run the line. That leaving out the words 
“extreme height” and confining it to distance that he would 
come over the State Ridge. That according to the report, 
the 101st-mile tree would be 106.85 miles around Tellico, and 
by actual measurement from the Catalouchee Turnpike to the 
101st-mile is 100.5 miles, and that there are no marked trees 
on the line around Tellico. On page 1,183 that Grassy 
Knob Ridge around Tellico breaks off from the State Ridge at 
nearly a right angle and is nearly a right angle to Jenks 
Knob. That he never saw any map that shows the line 
around Tellico, and only judges because it should follow the 
crest of the ridge. That Grassy Knob is on the State Ridge. 

On 1,185 he says “‘the only reason I say that the line goes 
around Tellico is that the Commissioners say they followed 
the main ridge,” although he admits that the one is a ridge 
and that the other is a chain of mountains with big peaks 


76 


and low valleys, and adds that you would naturally follow the 
State Ridge for a mile or two; that the general trend of that 
ridge is southwest and that the southwest course is not in- 
tended to record every crook and curve in the mountain. 
Some of those courses would be in the opposite direction. 

On page 1,187 he says as a whole you do not travel south- 
west to get to points along the line as he surveyed it. Com- 
ing back to the Slick Rock district survey, made in 1896, he 
savs he took part of it from Hyde’s survey, about three and a 
half miles. That he got Hyde’s map from Seymour. That 
he commenced at the 59th-mile tree, marked 59 in figures and 
M., 5 1-2 miles from the river, or exactly 5.63 miles. That 
the 65th mile would end 37-100 of a mile south of the river.. 
That the river to Hangover is south 8 deg. west, to Junction 
south 60 deg. west. 

On 1,192 he says he measured horizontally. He put no ele- 
vations on the spur to Slick Rock Creek. On 1,173 he says 
that the trends of the 1821 map and his map agree at undis- 
puted points. That the 64th-mile tree is 33-100 of a mile 
north of the river. That. his line crosses the river south 
44 1-4 deg. west and that the straight line on the 1821 map 
from there is about south 80 deg. west and that the line ap- 
proaches the river from the 59th-mile tree at south 45 deg. 
west. That one mile back it is south 30 dee. west. Between 
the 62d and the 63d mile, south 82 1-2 deg. west. But the 
general trend is sonth 45 deg. west. 

On 1,195 and 1,196, speaking of tree 30, he says he knows 
of no grants as old as 1821 in that locality, and from tree 30 
to Slick Rock Creek there are no old marked trees. That on 
tree 30 the hacks slant and the blaze is perpendicular and the 
marks en that tree were distinctly State line marks. On 
1,197 he says that the State line on the 1821 map strikes 60 
poles west of the mouth of the river. That on the north side 
there is a spur which leads off from the Smoky Mountains to 
Cheoah, and it is the most prominent spur. That there are 
no State line marks on it. That tree No. 30 is ten or twelve 
feet from the river. That the mouth of Cheoah is a mile and 
a quarter from tree 29 south 45 deg. east. That there is 
also a ridge on the south side from Hangover to Cheoah and 


a6 


from a point about two miles from the river. That it would 
be absurd to go to Cheoah. That the line along Hangover is 
8.63 miles to the Junction and 7.72 miles to County Corners. 
To Jenks Knob 5.28 miles. That to the Junction by Slick 
Rock is 11.48 or 11.21 miles. That tree 29 is about 100 feet 
from the river and 1.16 miles from Cheoah. 

On 1,201 he corrects his mistake in the distances; that the 
distance up Hangover to the Junction is 8.63 miles and from 
County Corners 7.22 miles, and says that the aggregate should 
be 15.85 miles instead of 16.35 as he had called it. That 
from the Tennessee River to Laurel Top is 14.93 miles; to 
Hog Jaw Gap 6-100 of a mile; to Jenks Knob 11.54 miles 
and to Unaka Turnpike 5 miles. To Hiawassee 2.87 miles; 
in all 44.22 miles. That Shick Rock Creek is on the right 
and Cheoah on the left. 

On page 1,202 he says that Cheoah is correctly shown on 
Burns’ map. That it runs southeast nearly at right angles to 
Slick Rock. That Cheoah runs away from the State line. 
That when the commissioners went from Hangover, they 
could see Cheoah, but that it was getting further away all 
the time. That from a point 63-100 of a mile north of the 
river, a line south 80 deg. west would strike 30 poles from the 
river. 

On 1,205 he states that the map of 1821 shows the line for 
7 miles south of the river running at an angle of south 44 1-4 
dee. west, and the next three miles south 20 deg. east, which 
would land you at the Junction. 

On 1,206 he mentions parts of the line not surveyed by him 
and speaks of certain portions of his map being sketched. 
That he did not pretend on his map to show all the topo- 
graphical features. That some of the ridges were omitted 
and some immaterial ones were only sketched. That there is 
no stream there opposite tree 29; there is a bluff there one- 
quarter of a mile each way. That there are three forks of 
Tellico and the 1821 map shows only two. That State line 
trees are marked on both sides. 

‘On 1,209 he says there were only two blocks produced by 
him in the Hebard ease. That one was so rotten that the age 
eould not be eonnted. That he had never heard of the line 


78 


north of the river being remarked in 1853. ‘That side lines 
are only marked on one side. 

On redirect examination, page 1,210, he again speaks of 
tree No. 30. That in speaking of 101 1-2 miles to the 101st- 
mile tree, he takes the 65 miles to the Tennessee River. From 
the river to the 101st mile is 35.5 by the State Ridge, run- 
nine over Hangover. That it is more by running up Slick 
Rock. That there (are) no State line trees around the head 
of Tellico. 

On 1,212 he says eliminating the age, and taking the line 
alone, it would not go around Tellico, and that Shek Rock 
Creek and Little and Big Fodder Stack ranges are only 
sketched in his map. 

On 1,216, that from the south bank of the river to the 
Junction, by his notes, it is 8.46 miles, and to County Corners 
7.73 miles. That there are 66 mile circles north of the riv er; 
the first mile circle north of the river is 2,392 feet from ae 
river. That the width of the river on the map of 1821 is 
2,105 feet. In fact it is only 568 feet. That the map of 
1821 shows the mile circles south of the river 1,118 feet and 
the first circle north 3,510 feet. 

On 1,218 he gives the Peck Grant in Tennessee, and on 
1,219 says that map of 1821 cannot follow any one ridge or 
stream, and that it is not worth the paper it is written on. 
That the south line of that map to the mouth of Slick Rock is 
one mile long. On 1,221 he says he spent fifty-eight days 
surveying the whole line, and gives the difference in actual 
survey between certain lines north of the river being in excess 
of what the 1821 map shows. That the map of 1821 shows a 
ereek turning away from the State line at about the same 
angle as Cheoah, and therefore it cannot be Slick Rock Creek. 

On 1,226 he savs that in the 66 mile circles north of the 
river the 39th and 40th miles are meant for the same. That 
the map of 1821 is a sketch map. That the witness did not 
have the North Carolina Code nor the Commissioners’ report 
in making his survey, and that he did not, in making that 
survev, recognize three hacks as State line marks at all. 
That the map of the Ocoee Land District is only a sketch wae 
and very inaccurate. 


On record page 1,622, this witness is again examined with 
the Davenport notes, and on 1,623 describes how he tested 
the notes; also on 1,624. He says he allowed five degrees 
variation, but in making this test he used the compass. That 
he never went to the maple on Hiawassee, but it was pointed 
out to him from across the river, and he has no doubt it is the 
same tree the Commissioners marked. 

On page 1,626 he continues the comparison. He says in 
looking down these lines on Burns’ Exhibit “D,” in answer to 
the question: 

(). “Is that a correct, or rather an accurate representation 
of your running of that line as compared with the line laid 
down there on that map, showing the North Carolina conten- 
tion according to the scale of that map?’ He answered: 
A. “No itis not. There is either a httle discrepancy in the 
surveying by Mr. Burns and ourselves, or in the plotting by 
Mr. Burns and ourselves.” ‘At one point this line very 
nearly touches the creek.” 

Q. “What line do you mean?” <A. “The red line running 
from the 59th mile tree southwesterly very nearly touching 
the creek is closer to the creek in fact than we eyer got in the 
survey, so that the whole line is a little bit east from where it 
was actually run.” 

In reference to the location of the head of Beaver Dam 
Creek, he says it was located by Williams too near to the 
Jenks Knob, probably a quarter of an inch on the scale of 
that map. That the south 75 deg. west on the map of 1821, 
according to the notes, strikes 135 poles west of Slick Rock 
Creek, and on 1,632 he continues his comparison of the field 
notes of Davenport with Burns’ survey and states that the 
pine stump at the mouth of Slick Rock was in reality an oak 
stump, and says something in that page about being carried 
16 miles into Georgia. 

On page 1,633 he says the blazes on tree 30 are eighty- 
seven years old, but there are two blazes, and on 1,634 says 
that the map of 1821 could not have been made from the Day- 
enport notes. That he has not changed his opinion. That 
the commissioners might have run up Slick Rock Creek but 
only tentatively, and then speaks of the bluff opposite tree 29. 


80 


On 1,635 he says, “I believe the Commissioners ran down 
the State Ridge and crossed the ‘Tellico, but abandoned that 
line.” On eross-examination, page 1,638 he stated that his 
copy of the Davenport notes corresponded with the Wiliams 
copy. That they followed the courses and distances exclus- 
ively, and on 1,640, that they always measured the straight 
line distances. That in going from tree 29 to Hlangover, you 
pass no creek, but the map of 1821 shows a creek and the 
report shows that the commissioners abandoned the Shek 
Rock line. On 1,641 that he thinks they filed that map as a 
sketch map of the country and that they did not expect any- 
body to follow it, and that the main ridge rather starts at 
Cheoah. 


The next witness for the defendant is 


JOHN L. WILLIAMS (Record, 1,403), 


a surveyor of Polk County, Tennessee. After giving his 
experience in stating that for a lttle more than eight years 
he was county surveyor of Polk County, he was first asked if 
he had examined the State line for some 2 1-2 miles along the 
Hiawassee River and south of that river, and having answered 
in the affirmative, he was asked about a certain course and 
certain maple tree marked “W. D. R. A.” on the south bank 
of the Hiawassee River. He answered that that tree is still 
there and that about six years ago he could see the W. D. on 
it. That in 1909 he examined the State line from the 59th- 
mile tree to Jenks Knob, having been employed by the Attor- 
ney General of the State of Tennessee. That he was familiar 
with the Cession Act, the Code of Tennessee, the report of 
the Commissioners and the map of 1821. 

That Hale and Muller were with him and that they used a 
compass. ‘That he put in eleven days on the work and three 
days more in 1910. That he ran the line from Laurel Top 
by MeDaniel Bald to Jenks Knob and also by the State Ridge. 

That from the 59th-mile tree to the river is 5.51 miles. 
On page 1,408 he details what he did in starting this survey, 
and among other things, sighted back to Parsons Bald and 
then turned his instrrment and found that Fodder Stack was 


81 


to the right and Hangover to the left of his line of sight; and 
on 1,409 that he then determined that the line was to the left 
after leaving Tennessee River. ‘That his first impression was 
that the line would more nearly fit Hangover, and arose from 
the tact that his line of sight was to the right of Hangover and 
to the left of Fodder Stack, and he thereupon decided that 
Hangover was the true line because the map seemed to show 
that the line was on a ridge and that it could not fit any other 
ridge. That he thought that ridge parallel to Cheoah. 

Hale pointed out to him the points claimed by North Caro- 
lina on their line and the points claimed by Tennessee, and 
he was told that North Carolina claimed that the line ran up 
Slick Rock Creek for some five miles, and Hale pointed out 
the spur running down from Fodder Stack to that point on 
the creek. That Hale also pointed out Little Slick Rock 
and several other notable objects on the south side of the 
river. That he stayed at that point looking for quite a 
while. 

The next day he crossed the Tennessee River and started 
from Hangover Ridge and went to the junction and then down 
the Fodder Stack Ridge as far as Glenn Gap. That while 
going from the ridge leading to Hangover, he kept up his 
observations and could not see why, if the commissioners went 
up Shek Rock Creek for five miles, they should show only 11% 
miles of the creek and omitted the Little Shek Rock Creek. 
That would show they were on a ridge from about two miles 
from the river, but that the abrupt turn six or seven miles 
south of the river seemed to show the contrary, and he had 
studied that a good deal. That the map does not conform to 
a line five miles up the creek, and that Hangover was the only 
ridge he could construe as the main ridge. That from the 
north side it seems a much higher ridge, and thereupon he 
selected it as the nearest main ridge to tree 29. 

That on the north side of the river he found tree marks 
88 and 58 and 30, and some only fourteen to sixteen years of 
age, and on 1,413 he says the line north of the river has been 
evidently marked more than once. 

On page 1,414 he says to take the shape and alignment 

2780---6 


82 


alone of the line from the map of 1821, it would not conform 
to either line, but would more nearly conform to the Slick 
Rock line, but for the shape of the line it conforms more 
nearly to the Hangover line, that is taking the topography 
shown on the map and everything else except the shape of the 
line, it conforms more nearly to the Hangover line. ‘That the 
map indicates that there was a ridge to the right of where they 
went up, but that he apphes it to the ridge from Hangover to 
the mouth of Slick Rock Creek. 

On page 1,415 he says that at the end of two miles the 1821 
map shows they were on a ridge and not running five miles 
up a creek, and he then goes into the question of the general 
trend away from the creek as it is depicted on the 1821 map. 
On 1,417 he says if he were running up a creek that he would 
not note the creek. On 1,418 he still compares the creek as 
shown on the map of 1821 with the line as claimed. That 
from Hayo to Cheoah the nearest point is 4 1-2 miles. That 
he has not been up Slick Rock Creek. That according to 
Burns’ map Exhibit “D,” Hangover is about three-quarters 
of a mile east of the head of the left prong of Slick Rock and 
that the angle of Slick Rock and Tennessee River more nearly 
represent Cheoah. That the extreme south line of the map 
of 1821 is seven or eight degrees different from the north 
line, but that would make no difference in scaling angles, but 
states that no one can scale bearings on the 1821 map aceu- 
rately. 

On 1,425 he describes the variations in the magnetic com- 
pass, and speaks of the difference between the true meridian 
and the magnetic meridian as variable quantities. On page 
1,423 he says that a surveyor could not make an actual sur- 
vey from the map of 1821. That considering all things, he 
never came to a positive conclusion as to the true line, but 
could never see that the Commissioners could have done any- 
thing else than‘go over Hangover. That from the face of the 
map and the reading of the report, if he had to decide, he 
would locate it on Hangover, but would be open to conviction ; 
but thinks Hangover is where they went because it-is the 
most direct way. On page 1,424 he gives as another reason 
that the plat shows that they crossed the river on the same 


83 


line as they ran to the river, hence he thinks they must have 
gone directly across. On page 1,425 he says that in going 
around Tellico, burns’ survey would not comply with the 
Commissioners’ report. 

On 1,427 that the straight line to Slick Rock on the map of 
1821 is south 69 deg. west. That from the 58th to the 65th 
mile the course is south 47 1-2 west and then states that no 
man in twenty-four hours can determine where that line ran. 
Burns crosses the river at about south 45 deg. west. That 
from the 59th to the 61st mile between the actual survey and 
the line on the map of 1821 there is a difference of 19 2-5 
poles and 86 poles in three miles. [rom the 61st to the 
62d mile 163-5 poles. He then explains the discrepancy 
again on the extreme south line. 

On 1,432 he says that platting from one point to another, 
or measuring around the meanderings would throw the line 
out. Would be all out of line. That the average discrep- 
ancies on the map are 25 to 30 poles. That the course north 
of the 59th mile tree on the 1821 map shows a straight line 
for a mile. He says taking the top of the mountain at the 
Tellico neighborhood and following the divide of the waters, 
it would lead you around by Beaver Dam Bald, Jenks Knob, 
Tipton Knob, MeDaniel Bald, Cold Spring Gap and Laurel 
Top; that is around the headwaters of Tellico. That the 
wording of the commissioner’s report, to the main ridge would 
mean that they would take the shortest line to that main 
ridge, and that the marks: are very rapidly disappearing. 
On page 1,433 he says he never found any State line trees 
on Hangover that he was satisfied were State line trees. On 
1,434 that he does not think it practicable to count the growth 
of the sourwood. On 1,435 he describes the lower part of the 
State line ridge and states that he found the 86th-mile tree, 
but found no State line trees between that and Jenks Knob. 
He says that he found some marks along the State ridge, but 
marks which he thought were more recent marks. That he 
did not search very thoroughly because Mr. Hale told him that 
it had been blocked so extensively that there was nothing left 
that resembled a mark. . 

On pages 1,437 and 1,438 he gives certain elevations and 


54 


states on 1,439 that it would take a week to make the 1821 
map. That it would take twenty working days to survey 51 
or 52 miles south of the river and that the whole line could 
only be accurately surveyed in thirty days. 

On 1,441 he speaks of tree 30 and states what he did in 
connection with Hale and McNab in blocking it and what he 
found. That in the block they took the marks were 58 years 
old, but on 1,453 says that it was remarked in 1852 or 18538 
and that would have obliterated the old marks, and that the 
old marks are hacks without any blaze, and gives certain rea- 
sons why there is no blaze there 88 or 89 years old. On page 
1,446 he says the map of 1821 shows the hne around. Tellico. 

On cross-examination, 1,447, he disclaims any knowledge 
as to whether he could go around Tellico and reach the marked 
101st mile tree in that distance or not. That he guesses it 
would be further and that the report indicates that they 
marked the line and taking the distances alone, it indicates 
that they did not go around Tellico. On 1,448 he says that 
if the line was marked on State Ridge and if he considered 
the holly the 86th mile tree, and the distance by the State 
Ridge was 101 miles to the 101st mile tree, these would indi- 
cate the Commissioners ran up the State Ridge line and if 
there are no marks on the line claimed around the head of the 
river, that would confirm it. That he does not know whether 
you could reach the 93d mile tree otherwise than by State 
Ridge or not. That taking the shape of the line and the 
angles they do not indicate that the Commissioners went 
around Tellico. On 1,450 that the shape of the line con- 
forms to the North Carolina contention, and that if the 
shorter line conformed more nearly to the measurements it 
would show that the Commissioners took that shorter line. 
And the Commissioners’ report says that that plat shows the 
line. On 1,451 that Hangover Peak is four miles from the 
river and that they were eight days on the Slick Rock part of 
the line, but that this witness did not survey any part of the 
line south of the river, and in their surveying they used a 
compass. From Parsons Bald to Lone Pine is south 42 1-2 
dee. west. That he did not find any 64th mile free; that it 
is 235 2-3 poles from the Lone Pine to the river. From the 


85 


59th mile tree to the river following the meanderings of the 
ridge is 5.51 miles. The bearing to Hangover is south 14 1-2 
west. That when he sighted southwest as he stated in the be- 
ginning, his line of sight struck Big Fodder Stack near Rock 
Stack, crossing the Slick Rock Creek. This point by Burns’ 
map would be 13,500 feet from Hangover and 4,000 feet from 
Fodder Stack and seems to be within six or seven hundred 
feet of the line as claimed by North Carolina. On Hale’s 
map the point would be half a mile from Slick Rock Creek 
and 2 1-2 miles from Hangover. 

On 1,457 he says running southwest, if you struck any 
stream it would be Slick Rock and you could not reach 
Cheoah on that line. If you had reached the mouth of Slick 
Rock Creek and then went seven miles south 44 1-4 deg. west, 
you would very nearly strike the top of big Fodder Stack. 
From there south 20 east three miles you would hit the June- 
tion. “I don’t know whether I would have shown Cheoah on 
a map of this kind or not.”” Such maps are not intended to be 
accurate topographical maps. The Slick Rock Creek is in- 
accurately located. On 1,460, that no other stream than Slick 
Rock comes in there. Just opposite tree 29 there is a bluff 
nine hundred feet high. On 1,462 he describes the looks of 
Hangover and states that you would look down considerably 
on the bluff when coming from the north; and on 1,463 gives 
elevations. 

On 1,464 he says Cheoah is about at right angles to Slick 
Rock and at an angle of 60 or 63 to Hangover. . That if you 
followed Cheoah you would be going further away from 
Hangover and Slick Rock all the time, and that its mouth is 
the nearest point. That the bluff on the other side opposite 
tree 29 extends from Slick Rock to the mouth of Cheoah. 

On 1,465 he says the fact that I have made up my mind 
from observation that the Hangover was the main ridge, was 
one of the controlling factors in my mind in locating the line. 
Another was the sighting as previously described. That 
Slick Rock Creek is sketched inaccurately. That on the map 
of 1821 one-hundredth of an inch would be 132 feet, and that 
such minute distances could not be shown on the 1821 map. 
On 1,467 he savs if a mistake was made in an angle and he 


86 


got off the line, if there was some object that he knew was 
on the line, he would correct it. That would be customary. 
That if Hangover is the line, following a stream for any dis- 
tance would be irreconcilable with it. That he does not know 
of any stream for an equal distance running so near the State 
line, whether it is on Hangover Ridge or Slick Rock Creek, 
as Slick Rock Creek does. That the straight extreme south 
line straight to Georgia on the map of 1821 is undisputed and 
does not follow a ridge and crosses one or two little streams 
not mentioned in the report. 

On 1,469 he says that taking the map of 1821 with the 
indication on it, that if he found a marked line up Slick Rock 
and the spur and from Big Iodder Stack and no marks on 
Hangover, that those facts would be a controlling factor and 
indicate that the Commissioners went up Slick Rock Creek. 
On 1,470 the words crossing at the 65th mile would land you 
on the south side of the Tennessee River. That the words 
‘from the Tennessee River to main ridge” indicate that when 
you got across the Tennessee you were not on the main ridge 
but have to go to-it. That blazes and marks generally may 
be imperfect. 

On page 1,471 he says, “‘I counted 88 or 89 years on Burns’ 
block from tree 30.” 

On 1,473 he speaks of the Thomas North Carolina grant. 
He states that the 64th mile tree from that grant seems to be 
60 poles north of the river and from the 64th mile tree to the 
south bank of the river is 1,655 feet, which he corrects how- 
ever to 1,305 feet; that is on account of the small seale of the 
map of 1821. He states that that distance of 3,725 feet, even 
upon the same scale of the map of 1821, could have been easily 
shown, to which the witness answers, ‘‘Yes.”’ 

Counsel on this reéxamination asks certain distances and 
certain questions about the width of the river, the precise 
object of which does not seem apparent, except that in going 
southwest of the river. Counsel seems to be seeking to stretch 
the end of the 64th mile to the black oak tree. And it is 
stated that according to these measurements the 65th mile 
tree would be 2-5 of a mile south of the river, and on 1,474, 
for the first time in the history of this litigation, tries to show 


by this witness that there is no bluff across the river from 
tree 29, but a little level land in there and that the words “to 
main ridge,” the significance of which he seems to conceive 
as meaning that the line crosses that little level strip, now for 
the first time discovered, and that the ridge itself [on 1,475] 
he seeks to show does not commence until you get about 3-8 
of a mile south of the river. 

On 1,475 he said: ‘‘My line of sight as originally men- 
tioned, does not fit either contention, nor the line as shown by 
the map, the line straight to the mouth of Shek Rock Creek, 
which is south 69 west. That the seven miles just south of 
the river, if prolonged on the angle of that line would reach 
Citico. That for seven or eight miles from the mouth of 
Slick Rock Creek the line as shown on the 1821 map is south 
37 west. That Burns’ map and the map of 1821 do not agree 
and it is very difficult to pick out any point on the 1821 map 
and locate it on the ground, because of the smallness of the 
scale, because the points we know, note and show on our plats 
are not shown on the 1821 map. 

On 1,477 he says that “If I was absolutely sure of State 
line marks on Slick Rock Creek, they would control me.” 
On 1,478 he says, ‘““The creek more nearly represents Che- 
oah.”’ 

The description is then read to the witness of the Cession 
Act and the North Carolina act confirming the report of the 
commissioners, and the witness says that according to that he 
would have gone to the mouth of Cheoal and thence up the 
ridge from there to the Hangover two miles back. He then 
gives certain courses from the 59th mile tree, and on 1,483 
says he has never been able to reconcile the map of 1821 to 
either the Slick Rock or the Cheoah, and that neither of these 
could be seen from the Hangover Ridge.’ That he could not 
reconcile that plat with any stream in that neighborhood. 
That the Ocoee plats were often inaccurate, and that the bear- 
ings of the map of 1821 were evidently taken from the mag- 
netic meridian. 

This witness is examined again commencing on page 1,544 
with reference to the Davenport field notes. He states that 
he made a survey according to these notes from the 59th mile 


88 


to the 72d mile and found himself on Citico, three quarters 


of a mile west of Fodder Stack. He also surveyed from the 
101st to the 86th mile and landed three-quarters of a mile 
from the 86th mile tree. That he found a south hne about 5 
deg. west. That he also surveyed one mile back from the 59th 
mile according to the calls of the Davenport notes. The calls 
of the Davenport notes from the 86th mile to the maple at Hi- 
awassee have been read to the witness, and the calls from the 
72d to the 86th mile, and the witness states that he platted the 
Davenport notes on a copy of Exhibit ‘‘D” and compares the 
Davenport notes with the Burns survey. On 1556 he states 
that the end of the mile line on the Burns map to Slick Rock 
is 1,600 feet from the mouth of Slick Rock, and that the end 
of the 65th mile is 2,244 feet from the same point according 
to the Davenport notes nearly west, and that the Davenport 
notes took him to the Tennessee River, 1,617 feet from the 
64th>mile, so that 2,800 feet of that line would be south of the 
river. This copy of Exhibit ‘““D” with the Davenport notes 
platted on to it faces page 1,556. 

From the 59th mile tree to the Big Fodder Stack with the 
line as claimed by North Carolina, he took from Burns’ 
notes. And on page 1,559, Exhibit “BB,” which is the plat 
above mentioned, is filed. That the streams on that map are 
pretty accurately platted, but between places only sketched in, 
and states that on that map he has represented the main moun- 
tain and the lead to- Hangover from the river, or the Hangover 
Ridge. 

Defendant’s Exhibit “CC” is here introduced, and atten- 
tion is called on 1,562 to a mistake in the Davenport notes 
between the miles 71 and 72. That there are many discrep- 
ancies between the 1821 map and the Davenport notes, and he 
enumerates thirty-nine of them. 

On 1,566 he continues the comparison, and on 1,567 states 
that the map itself shows the error of notes between the 71st 
and 72d mile. Also between the 95th and 96th miles. That 
the Commissioners’ report differs widely from the Daven- 
port notes. On 1,568 he says the notes do not say ‘“‘running 
with the top of the mountain,” and attention is called to the 
United States map. 


59 


On 1,571 he says Hale was with him on all of his surveys 
and worked with him. That the Davenport notes north of 
the river do not tally with Burns’ survey. That on Burns’ 
map the 65th mile ends 136 poles west of Slick Rock, and on 
1,574 he continues to detail the discrepancies between the 
ereek and Burns’ survey, and states that according to the 
Davenport notes, at the end of the 70th mile they were 1 1-2 
miles from where the North Carolina contention shows the 
line left the creek. He also shows then the running of the 
line at the Tellico River neighborhood, according to the Dav- 
enport notes, and states that they allowed five degrees varia- 
tion. In other words, testing by the true meridian, while 
the magnetic was used by Davenport. 

He states on 1,575 that tree 30 showed blazes back to 
1823. -That it was six or seven feet from the bank, and for 
the first time now, it is tried to be shown by this witness that 
sometimes there might be two growths to a year, but the 
witness said he had never found it so. The witness is then 
asked about Deever’s map, Exhibit ‘FI’ and the “GG” 
United States map. On 1,578 the witness is asked certain 
questions about MeDaniel Bald and the Cheoah Path, in an 
effort apparently to fit Cheoah Path and the turns in Hang- 
over to the path and turns of the line as North Carolina 
elaims tt. 

On 1,580 he speaks of the Deaver’s map of 1837, and on 
1,581 states that the streams are sketched in Exhibit “GG” 
on the government map. 

The cross-examination commences at 1,582, and he states 
that he used the Davenport notes with five degrees variation ; 
and on 1,583 details how he made use of such notes. On 
1,584 he says he did not hunt for objects mentioned in the 
Davenport notes, and on 1,586 that he did not record, or even 
hunt for any of the trees mentioned in the notes, and that he 
platted and tested Burns’ lines in the same way. That the 
59th mile tree is a scarlet, not a red oak. That he found the 
Equoneetly Path. On 1,588 he says he discarded the map 
and path and discarded natural objects. That by the notes 
they call for the mouth of the creek. That he could not find 
the marked trees from the 59th to the 64th miles and that he 


dO 


did not come to the creek with the survey. That was a de 
parture from the calls, and that he knew exactly where each 
mile ended. That he knew the North Carolina contention 
went up Slick Rock Creek, but he did not survey it. ) 

On 1,590 he says in a long survey like that, you cannot 
expect courses and distances to come out right. That it was 
not a natural way to test a survey and that he could not expect 
his comparison to come out right, and that if he were to go 
out there today and be shown those lines of the trees, he would 
say that they could not have gone along that lne platted in 
red, or the line platted in green. And from here on he cor- 
rects many of his mistakes and the discrepancies heretofore 
mentioned in 1,591. He says these notes must have been the 
record of some survey. They could not come from the imagi- 
nation. That the survey must have been made rapidly, and 
on 1,592 he describes the character of the country and he says, 
“In following these calls of the Davenport notes, I would 
consider it necessary to cross at the creek.” On 1,593 he 
says that the notes indicated that the surveyor was going the 
general turn rather than getting every minute detail. 

On 1,594 he says, “My observation upon the ground was 
what determined my belief, and not the notes.” ‘‘I do not 
say that the Davenport notes cannot be made to fit the North 
Carolina contention. They would not show the Tennessee 
contention. The notes on the North Carolina contention 
cross the creek at its mouth. The Tennessee contention does 
not.” That the Tennessee contention goes just in the oppo- 
site direction from what the notes indicate, and the Daven- 
port notes more nearly fit the North Carolina contention. 

On 1,595 he says that the Deever map turns to the left in 
the first mile, and in the North Carolina contention it turns 
the same way. That the Deever map in the first mile turns 
to the left, and in the first ten miles the North Carolina con- 
tention turns the same way. The Tennessee contention just 
in the opposite direction. That Deever’s map is not correct 
as to either North Carolina or Tennessee contentions. The 
Deever map follows the mouth of Cheoah for 3.44 miles. 
That the blue line on the “GG” Exhibit from below the mouth 
of Cheoah to the Deaver western line is three-quarters of a 


v1 


mile, but on Deaver’s map is three miles. That you would 
have to move the line on the ‘‘GG” exhibit more than an inch. 

On 1,597 he says that the 64th mile tree on Burns’ map 
should be 3,095 feet back of the hemlock, 275 feet north of 
where he located it. From there to the mouth of Slick Rock 
would be south 89 west; leaving out the allowance of five 
degrees would be south 84 west 1,470 feet. That he found 
marked trees from the 59th mile to the river (record, 1,598), 
but that even on the north he found many State line trees 
with only fifty-eight years growth, but that nobody questioned 
the line along there. There were old trees there too to indi- 
cate the lines, and the 64th mile tree would be further back. 
That Burns shows one mile to Slick Rock. That if a survey 
was to be made there, they would sometimes take a single 
course for a mile and sometimes for half a mile. That the 
running and marking would have to be around and not fol- 
lowing the course of the compass. That the marks there are 
sufficient to. show that the marking was done around the moun- 
tain tops. 

That Deaver’s map was evidently just sketched in, which 
means put in from the surveyor’s ideas, and is not very accu- 
‘ate and in fact may be very inaccurate. That the divergence 
of five degrees from the Davenport notes and the map, would 
be very slight with reference to the termini, and the witness 
is taken over the divergence again. 

On 1,602 it would seem that the copies of the notes that 
were given to this witness were inaccurate; there are several 
of these discrepancies. That on pages 1,603, 1,604, 1,605, 
1,606, 1,607 and 1,609 continuous explanations are made of 
these discrepancies and admission of errors made by the wit- 
ness. On 1621 it is apparent that the man who made the map 
of 1821 and the man who made the Davenport notes had 
information of the same survey ; the general outlines are alike 
and the courses and distances practically one set. In the 
main they are the same, and he says: “TI think that by very 
careful work, the field notes could be made from the map 
itself, which wonld make another map which would very 
closely resemble it. 


92 


The defendant’s next witness was 


O. W. MULLER, 


who testified in the Hebard case. This original testimony is 
found at page 1,368 of the record. 

He was surveyor of Polk County, Tennessee, and was with 
Hale and Wilson on the original survey in about 1897. He 
says he was employed by McCroskey and Seymour to make 
that survey. That they crossed the river, examined all the 
ridges that could possibly be called a continuance of the main 
ridge on the north side, and all spurs leading to the prominent 
ridges on the south side. That they found no old State 
line marks on any of these near the river and that they ran 
their line on the most prominent ridge, running to what is 
called Slick Rock Gap, because it fits the description of the 
report of the Commissioners; that is on the Hangover Lead. 

On page 1,369 he says the topography of the country deter- 
mined their selection of this lead. Standing on the summit 
of this ridge and looking back over the ground, the continu- 
ance of the leading ridge seemed so plain that there seemed 
no possibility of mistaking the identity of the formation. It 
looks as though the river, impeded in its course, had burst 
through the mountain, worn down a rocky chasm, leaving the 
same configuration on both sides of the river; the course 1s 
southwesterly, and the general elevation is greater than the 
surrounding ridges. None of the other ridges look like a 
continuation of the ridge on the north side of the river, on 
which the marked State line is found. 

On 1,370 he says there are many marked trees on this line 
and mentions the sourwood. They ran the line to Hiawassee. 
On 1,372 he says they found old marked trees on Slick Rock 
line, but the Hangover is undoubtedly the main ridge, and 
tells why, but the reasons given are the reasons that have been 
heretofore given by other witnesses. 

On the Bill of Review, he testified with reference to the 
map of 1821, commencing record 1,268, that they could not 
fit the map to the territory, and then on 1,270 states what 
efforts they made to fit. He states that the map indicates 
that it crosses the river at right angles and they could not fit 


U3 


the ridges. That the shading indicates that they were run- 
ning on the ridge. None of these ridges would fit the map. 
That Cheoah River is a mile and a quarter from tree 29. 
On 1,273 he says that persons going through that country 
untamihar with it, would naturally take the spur down to 
Cheoah. That Hangover is the most prominent ridge, but 
that you have to go down to Cheoah to cross. 

That Burns’ map shows the State line on the north side cor- 
rectly, but they could not locate the line on Slick Rock Creek 
from the map of 1821; that no line is shown on the map run- 
ning up the creek for five miles. Indications are to follow 
the ridge. ; 

On 1,276 he says that Cheoah runs almost parallel with the 
Tennessee River apparently, and that if you did not know 
that Cheoah was there, you could not see it. That they only 
went a mile north and in his opinion the Unicoy is the high- 
est ridge. That the courses of the map of 1821 are not such 
as they can lay down on the mountains. The map shows that 
they run on mountains. That that map shows that they 
crossed at a water course, ane it must be either Slick Rock 
Creek or Cheoah; and that the map does not show that they 
crossed a bluff. That by the map of 1821 you cannot locate 
the line. On page 1,288 he says he found the map of 1821 
was incorrect in all its bearings and distances, and he paid no 
further attention to it; and this he could tell by the field notes 
of his own made before he saw the map of 1821. 

He was again examined (record, 1,291). On 1,295 he 
says there were State line trees on State Ridge and that he 
found the holly, the 86th mile tree. That these were evi- 
dently made for State line marks, but were not on the hne 
described by the commissioners, and therefore he could not 
say whether they were State line marks or not. That the 
State Ridge is not a defined ridge after you pass Hiawassee 
until you approach Jenks Knob. He found the 86th mile 
holly and says it looked as if it was intended to be a State 
line tree, but was not on the ridge that he picked out for the 
State line and therefore he could not recognize it as a State 
line tree; it was near the Tellico River. He describes the 
ridge around the head of Tellico, showing that it had a good 


94 


many gaps and knobs, but says that no competent surveyor 
could mistake the main divide. That there are no State line 
trees on the ridge around Tellico, but he located the State line 
around the head of that river, on the main ridge. 

On page 1,300 he says crossing the river at 65 miles means 
that they crossed it directly. On page 1,304 he says that the 
maps and field notes of the Ocoee and Hiawassee Land 
Districts were hard to locate. The maps and notes were 
inaccurate. He says on page 1,306, “I followed a marked 
line when it agrees with the natural objects.” That he did 
not consider it possible to reconcile the plat of 1821 with 
anything in that country. That the rivers on that are wrong. 
They are just sketched in. 


J. E. WILSON, 


now dead, was also a witness as a surveyor in the Hebard 
case (record, 1,345). He was a surveyor of Maryville, Ten- 
nessee, and was with Hale on his first survey. He found tree 
29, and the substance of his testimony is that it was the natu- 
ral supposition that the line would go straight across the 
river. He describes the topography as it has been already 
described and the trees on Hangover about as Hale describes 
them, and mentions trees on the Fodder Stack. He says the 
Hangover Lead is the main ridge, and he thinks the Commis- 
sioners ran up that. line. 


ONLEY WILLIAMS, 


on page 971 of the record, is not a surveyor, but he was with 
one of the surveying parties. He says he found State line 
marks right smart below the mouth of the Cheoah, and thinks 
Hangover shows up better from the north, and from the 
shape of the stream marked “creek” on the 1821 map, that it. 
must be Cheoah. 


H. M. KENT, a surveyor. (Record, 1,489.) 


This witness might be treated as a negligible quantity. 
Crisp, one of complainant’s witnesses, record, 563, says of 
him that in May, 1910, he appeared on the ground represent- 


95 


ing the Babeock Lumber Company, and that he sighted from 
the north side backwards and forwards with a straight stick. 
That they had no instrument with them. They then went on 
to the south line of the river, inspected Slick Rock and Big 
Fodder Stack, and that they made up their minds that the 
line ran up Slick Rock and Big Fodder Stack, and he said he 
would so report. 

He denies this on page 1,495 and says he was mainly 
looking for the main ridge, and that Hangover appeared to 
be higher and bigger than.any other, and that he could not 
get it out of his head that Hangover was the main ridge, but 
admits that there were State line trees on the Slick Rock line. 
Subsequently he says (record, 1,505), that at first he thought 
Little Fodder Stack was the main ridge. That the map of 
Burns and Gannet seemed to be right in courses and dis- 
tances trom Knob to Knob, but on the whole (record, 1,501), 
the most reasonable and probable route seemed to be to cross 
the river at tree 29 to the top of Hangover and from there to 
the junction. Moreover, he says Hangover goes down gradu- 
ally to the river and is very much broken. 

This survey, such as it was, was made in May, 1910, and 
his testimony was taken January 7, 1911. He was asked 
(record, 1,510) what report he made, and did he report that 
it went over Hangover. Hesays: ‘I reported to him (Mr. 
Shields) what I found.” . 

The question is repeated : . 

Q. “Did you report that it went over Hangover?’ A. “I 
think I told him I thought so. I wrote my opinion.” He 
gives no further light, but simply emphasizes his failure of 
memory in his answer to question 175, by saying that he must 
have reported in favor of Hangover because he must have 
reported what he found. 

C. B. McNAB (record, 1,516), 


is not a surveyor. His experience of tree marks was very 
slight. He never did any blocking. He says the marked 
trees are a little short in measurement. 

On page 1,525 he speaks of the tree No. 30. He was 
impressed with the idea that Hangover was the main ridge. 


96 


That the blaze on tree 30 was only fifty-eight years old. That 
Burns’ block shows four hacks. Nothing to indicate a blaze; 
only a dead spot on one of the hacks, and thinks that that 
would not indicate a blaze, but it might if the hacks were not 
there. 


ANALYSIS OF THE EVIDENCE. 


In considering the force of the evidence in this case, the 
subject matter divides itself into several important and con- 
trolling circumstances, which will be separately discussed : 

(1) In the first place comes the Cession Act of 1789, 
whereby the State of North Carolina, by act of its General 
Assembly, ceded to the United States the territory, including 
the part in controversy and the territory out of which the 
State of Tennessee was formed. The act of February 6, 
1796, of the State of Tennessee, being section 32 of the Dee- 
laration of Rights; the Acts of North Carolina and Tennessee, 
respectively of 1819 and 1820, whereby the two States ap- 
pointed Commissioners to fix the dividing line from the Cata- 
louchee Turnpike Road, southwest; the line to the Catalouchee 
Turnpike to the northeast, having been previously located. 
The Acts of November 9, 1821, passed by the State of North 
Carolina, and chapter 35 of the Act of 1821 passed by the 
State of Tennessee, confirming the acts of the Commissioners 
and adopting and confirming the line located by them. 

(2) The acts of the Commissioners under the statutes of the 
two States, authorizing them to run the line, consisting of 
their report and the map designated throughout the record as. 
the map of 1821, which report and map were filed at the time 
with each of said States at their respective capitols. 

(3) The topography of the country at the localities in dis- 
pute. 

(4) The surveys that were made in the interests of each 
party. 

(5) The Davenport notes. 

(6) The marked line. 

(7) The prevailing tradition or traditions, with reference 
to the State line. 

Teking up these in their order, we find that the Cession 


97 


Act describes the property ceded as being west of a line be- 
ginning on the extreme height of the Stone Mountain, at the 
place where the Virginia line intersects it. Running thence 
nlong the extreme height of the said mountain to the place 
where Watauga River breaks through it; thence a direct 
course to the top of the Yellow Mountain, where Brights Road 
crosses the same. Thence along the ridge of said mountain 
between the waters of Doe River and the waters of Rock 
Creek to the place where the road crosses the Lron Mountain. 
From thence along the extreme height of said mountain to 
where Nolichucky River runs through the same; thence to the 
top of the Bald Mountain. Thence along the extreme height 
of the said mountain to the Painted Rock on French Broad 
River. Thence along the highest ridge of the said mountain 
to. the place where it is called the Great Iron or Smoky Moun- 
tain. Thence along the extreme height of the said mountain 
to the place where it is called Unicoy or Unaka Mountain, 
between the Indian towns of Cowee and Old Chota. Thence 
along the main ridge of the said mountain to the southern 
boundary of this State, to. wit, the State of North Carolina. 

On page 81 of the record, is the substance of the Act of 
North Carolina passed in the year 1819, providing for the 
appointment of the joint commission, and defining the duties 
of the commission to. “settle, run and mark the boundary line 
between this State and the State of Tennessee, agreeably to 
the true intent and meaning of the Act of the General Assem- 
bly of this State, entitled ‘An Act for the purpose of ceding 
to the United States of America certain western lands therein 
described.’ ” 

In the second section of that Act, it is provided that the 
State will at all times hereafter ratify and confirm all and 
whatsoever the said commissioners, or a majority of those of 
each State, shall do and in touching the premises, and the same 
shall be binding on this State. And further in section 3, 
providing as follows: ‘And the commissioners on the part 
of this State shall cause an aecurate plan of said boundary 
line to be made, specifying the courses, and distances, natural 


2780-—7 


98 


and artificial marks thereof and return the same to the Gen- 
eral Assembly of this State.” 

The substance of the Tennessee Act is contained on pages 
S2 and 83 of the record, and the third section of that act is 
in these words: ‘Be it enacted, That whatsoever the said 
commissioners or a majority of those of each State, shall do 
in and touching the premises, shall be binding on this State.” 

On the 31st day of August, A. D. 1821, the Commissioners 
under their individual names made their report and filed 
their map, making a report to each State. This report to the 
State of Tennessee commences on page 83 of the record. The 
report and map and all other papers connected with this sur- 
vey that were filed at Raleigh, presumably have been de- 
stroyed by a fire which consumed the capitol there in about 
1832 or 1833, and so far as we have been able to find, those 
particular papers are not in existence. 

In making this report on page 84, the Commissioners say 
that, ‘“‘we proceeded to ascertain, run and mark the said 
dividing line, as designated in the 11th article, called the 
Declaration of Rights of the Constitution of the State of Ten- 
nessee, and in the Act of the General Assembly of the State of 
North Carolina, entitled ‘An Act for the purpose of ceding to 
the United States of America certain western lands therein 
described, passed in 1789; which said dividing line as run 
by us, begins at a stone set up on the north side of the Cata- 
louchee Turnpike Road, marked on the west side Ten. 1821, 
and on the east side N. C. 1821, running thence a southwest- 
wardly course to the Bald Rock on the summit of the Great 
Tron or Smoky Mountain and continuing southwestwardly on 
the extreme height thereof to where it strikes the Tennessee 
River, about 7 miles above the old Indian Town of Tallassee, 
crossing Porters Gap at the distance of twenty-two miles from 
the beginning; passing Meig’s boundary line at thirty-one and 
a half miles; the Equonettly Path at fifty-three miles, and 
crossing ‘Tennessee River at sixty-five miles from the begin- 
ning. Irom the Tennessee River to the main ridge and along 
the extreme height of the same to the place where it is called 
the Unicoy or Unaka Mountain, striking the old trading path 
leading from the Valley owe to the Overhill wees, near 


v9 


the head of the west fork of Tellico River, and at the distance 
of ninety-three miles from the beginning. ‘Thence along the 
extreme height of the Unicoy or Unaka Mountain to the south- 
west end thereof at the Unicoy or Unaka Turnpike Road, 
where a corner stone is set up marked Ten. on the west side 
and N. C. on the east side, and where a hickory tree is also 
marked on the south side, Ten. 101 M., and on the north side 
N. C. 101 M., being 101 miles from our beginning.” 

This seems to be the only part of the report that it is essen- 
tial to quote with reference to the line itself, but the report 
adds, ‘The said dividing line run by us in its whole length is 
distinctly marked with two chops and a blaze on each fore and 
aft tree, and three chops on each side line tree, and mile 
marked at the end of each mile; agreeably to the plats which 
accompany this report, and which said plats and reports are 
certified by us in duplicate, one for each of said States, in the 
same words, marks and figures.” 

On page 86 of the record is contained the Act of the Gen- 
eral Assembly of North Carolina, passed in the year 1821, 
confirming the boundary line as run by these commissioners, 
describing it exactly as it is described in the report, and add- 
ing, ‘The whole distinctly marked with two chops and a blaze 
on each fore and aft tree, and three chops on each side line 
tree, and mile marked at the end of each mile.” 

In considering these Acts, under the authority by which 
the Commissioners acted in locating this line, the first thing 
that strikes one is that at the time the line was so undefined, 
it was impossible to locate it by Legislative act. If it had 
not been, there would have hardly been any necessity of a 
joint commission. There must have been more or less of un- 
certainty as to where in fact that line was located. ‘The very 
fact that a commission was appointed and that both acts pro- 
vided for the case of a difference of opinion among the Com- 
missioners, shows pretty conclusively that there was, or might 
arise, a ground for such difference, and secondly, that in cases 
of such differences, the Commissioners were to choose within 
the general directions and limits and fix where the true line 
was, and that that difference of opinion might be serious; 
whereupon it was provided that the majority of the Commis- 


100 


sioners of both States should settle it, and when it was set- 
tled in that way, by both acts, the States had agreed to be 
bound by it. 

It is entirely illogical therefore to argue that these Commis- 
sioners had no discretion whatever in the matter; that they 
were bound to settle the line along the top of some. ridge. 
That they could not leave the ridge even for a temporary 
purpose in getting to some other point; and that if there was 
no ridge that was appropriate directly in the line (that south- 
westward line) that then they must hunt one. The rigidity 
of such an authority would remove all idea of any discretion 
whatever, even though it might have been an exercise of dis- 
cretion unanimously, and even something that was necessary. 
Yet they were bound to follow the extreme top of some ridge. 
That such is the effect of the acts is manifestly wrong, and 
much more it is manifestly wrong to claim, not only that the 
commissioners were rigidly confined to the extreme height of 
a ridge, but that it must be such ridge as in the opinion of 
the surveyors living in the State of Tennessee and employed 
by the State of ‘Tennessee, was the ridge that they ought to 
have chosen. We say this last because we think it will ap- 
pear that the surveyors on the part of the State of Tennessee 
followed the original surveyors, the chief of whom was W. D. 
Hale, who commenced his surveys in 1896 for use in the 
Hebard case, and has been with every subsequent surveyor 
who has undertaken to run that line on behalf of the State 
of Tennessee since then and has evidently dominated each 
surveying party that he was with, and it will be found that 
he openly avowed that the topography of the country deter- 
mines the locality of the line in his mind, and that it was so 
because in his opinion certain ridges were main ridges and 
the ridge that the Cession Act intended the commissioners to: 
follow, and which therefore they ought to have followed. 

If the Legislatures of the respective States had any doubt 
about the true location of the line and of the ability of the 
Commissioners to locate it by the mere inspection of the to- 
pography of the locality, and if by the law authorizing the 
joint commission, it 1s sought to obviate that by empowering 
a majority of the Commissioners to locate, settle and mark 


101 


the line, those doubts and that authorization would seem to 
have been justified by what has been developed by the evi- 
dence in this case. 

Assuming that all of the expert witnesses are equally hon- 
est and equally capable, the difference of opinion that has 
arisen. would indicate that there is ample ground for an 
honest difference as to which is the main ridge southwest of 
the Tennessee River and where the Commissioners ought to 
have located the line, and where the most natural locality of 
the line would be in the judgment of the Commissioners, rea- 
sonably following the requirements of the acts of the Assem- 
bly. And the agreement to ratify and confirm whatever the 
commissioners might do in the premises, emphasizes the fact 
that there was an essential discretion to a certain extent left 
to them and their unanimity in adopting the wording, “locat- 
ing, settlng and marking the line” shows that there must have 
been some consideration in the fitness of things, which induced 
them to locate it where they did, and if we can only locate 
that line that they did in fact run, then we have the thing 
that the Legislature ratified and confirmed. 

This view of the situation, as foreshadowed in the laws, 
and the evident purpose of the appointment of the Commis- 
sioners, becomes important, because as we proceed it will be 
found that W. D. Hale, an expert witness for the defendant, 
who dominated all of the surveys that were made in its be- 
half, undertook to put his own interpretation upon the Ces- 
sion Act and acts providing for the appointment of the Com- 
missioners, and located the line almost entirely from the to- 
pography of the country and his own opinion as to which 
was the main ridge south of the river, and not so much where 
the Commissioners in fact did locate the line, but where in 
his opinion they ought to have located the line and endeav- 
ored to make everything else conform and be subservient to 
that opinion of his, formed at the start. 


102 


COMMISSIONERS’ REPORT. 


Looking to the report of the Commissioners of 1821 (rec- 
ord, 83 and 84), and without the aid of any plat or field 
notes filed with it, we learn in the first place that they assem- 
bled at the town of Newport, in the State of Tennessee, on 
the 16th day of July, A. D. 1821, to settle, run and mark 
the dividing line between the two States from the termina- 
tion of the line run by McDowell, Vance & Matthews in the 
year 1799, to the southern boundary of the said States. 

They made their report at Knoxville on the 31st day of 
August, 1821, so that a period of about six weeks was occu- 
pied by them in getting to and from the localities, making 
surveys and making the map. This survey is. shown further 
to have commenced about sixty-five miles northeast of the 
Tennessee River and continued to the southern boundary 
line of the States of Tennessee and North Carolina, a dis- 
tance of over one hundred and sixteen miles. | 

The evidence in the case on both sides shows that that 
was too short a time to make a strictly accurate survey. The 
time consumed in getting to the extreme northeast point of 
the line and back to Knoxville from the southwest part of the 
line must have been a week or more. 

Wilhams, one of the defendant’s principal witnesses (rec- 
ord, 1,439), testified that would take a week to prepare the 
map, and making some allowance for Sundays and days when 
the weather would not permit work to be done, they must have 
spent on the actual survey considerably less than thirty days. 
If the time was scant to make one survey, it must have been 
much more inadequate to make two surveys. 

The pertinency of this observation will be apparent when 
we come to discuss the evidence of W. D. Hale. This wit- 
ness, who is defendant’s principal witness, and who domi- 
nated apparently all of the surveys made on behalf of the 
defendant, because he was present with the surveyors and 
apparently in charge of them at every survey that was made 
for the defendant. His first survey was made with Muller 
and Wilson in 1896 or 1897. As we will discover, com- 
mencing on the northeast side of the river, when he arrived in 


103 


proximity to the river, he cast his eye over the territory 
across the Tennessee River from where he stood and made up 
his mind that the Hangover Ridge was the main ridge to the 
southwest of the river, and that inasmuch as in his opinion 
the language of the Cession and other acts confined the Com- 
missioners to the main ridge and rendered them powerless, 
even for short distances, to leave the crest of the ridge, no 
matter what consideration may have moved them, he con- 
cluded that the Commissioners had no power to go any place 
else and that therefore in fact they carried the line over 
Hangover Ridge, because they ought to have done so. 

He is forced to admit, as we shall show further along sub- 
stantially, that the Commissioners did make a survey up 
Slick Rock Creek and over the Big Fodder Stack, and below 
they made a survey over the State Ridge in distances of in the 
ageregate of fifteen miles of the most difficult parts of the 
line, but that they abandoned these perplexing parts now in 
dispute, and casting their eyes over the Hangover Ridge and 
over the ridge around the head of Tellico River, passing Mc- 
Daniel Bald, while they actually surveyed and marked both 
the Slick Rock Creek part of the line and the State Ridge 
part of the line, nevertheless, they mentally adopted the 
Hangover Ridge and the ridge around Tellico River as the 
true State lines. 

It is sought to be shown that in the Tellico country they 
were deceived because they were in a fog, and when the fog 
hfted, and they found their mistake, they sent some parties 
back to obliterate the marks on the trees that had been made, 
and that after obliterating some of them, they got tired of the 
job and were also too tired to measure and survey around 
the headwaters of Tellico and therefore made the mental res- 
ervation already mentioned. But of this partial obliteration 
and of the fact that their report was accompanied by any 
such mental reservation, there is not one item of evidence. 

The same claim practically is made with reference to the 
fixing of the eastern boundary line of the Ocoee Land Dis- 
trict, which is fixed according to the map of that district at 
the Slick Rock Creek. The excuse made for not going fur- 
ther was that the country was rough, wild and uninhabited 


104 


and they were also too tired to measure around and’ survey 
the Hangover Ridge, but that, they just made up their minds, 
it was the dividing line. In other words, in each case the 
Commissioners in the one case and the Ocoee Land District 
Commissioners in the other case, instead of marking the hne 
as it was intended to be located, fixed it in their minds, but 
made reports and plats diametrically opposed to these secret 
meetings of their minds. 

Referring to the written report, the commissioners say 
that they proceéded to ascertain, run and mark the said divid- 
ing line, which they said begins at a stone set up on the north 
side of the Catalouchee Turnpike Road and runs thence a 
southwestwardly course and continues southwestwardly to 
where it strikes the Tennessee River, crossing Porters Gap 
at the distance of twenty-two miles from the beginning; 
Meig’s boundary line at thirty-one and a half miles;. the 
Equonettly path at fifty-three miles, and crossing Tennessee 
River at sixty-five miles from the beginning. - From the Ten- 
nessee River to the main ridge and along the extreme height of 
the same to the place where it is called Unicoy or Unaka 
Mountain, striking the old trading path leading from the Val- 
ley Towns to the Overhill Towns, near the head of the west 
fork of the Tellico River and at the distance of ninety-three 
miles from the beginnine. Thence along the extreme height 
of the Unicoy or Unaka Mountain to the southwest end there- 
of at the Unicoy or Unaka Turnpike Road where a corner 
stone is set up, being 101 miles from the beginning; thence 
south two miles and a fraction to a spruce pine on the north 
bank of the Hiawassee River below the mouth of Cane Creek, 
ete. 

Further along they say “the said dividing line run by us 
in its whole length is distinctly marked with two chops and a 
blaze on each fore and aft tree and three chops on each side 
line tree, and mile marked at the end of each mile, agreeably 
to the plats which accompany this report, and which plats and 
reports are certified by us in duplicate,” ete. 

We learn further from this report that the Commissioners — 
were apparently in the habit of noticing the gaps and paths 
an the more prominent streams that had any names. 


105 


In this connection we may remark that according to 
the testimony, on the northeast side of the river there are 
streams in close proximity to the undisputed State line which 
are not mentioned, and if the line as is claimed goes over 
the Hangover Ridge, there are three deep gaps, to wit, Big 
Fat Gap, Sourwood Gap and the Shek Rock Gap, which are 
not mentioned, and two peaks, the Hangover Peak and the 
Hayo Peak on the line as claimed by the State of Tennessee, 
between the Tennessee River and the junction of Hangover 
Ridge and Big Fodder Stack, which peaks are, with the excep- 
tion of Huckleberry Knob, which is not on the State line as 
claimed by either party, the very highest peaks in that section 
of the country which are not mentioned. So then it is quite 
impossible to surmise what rule the Commissioners adopted 
in mentioning natural objects, and it is wrong to argue that 
if the Commissioners located the line at a certain place, they 
would have mentioned this, that or the other natural object 
which we know to exist, for we are utterly ignorant as to what 
considerations moved them in determining the importance, or 
non-importance, of mentioning a land mark or monument; 
and it would be quite consistent to find, especially where some 
stream had no name, that they had simply called it a creek, or 
omitted entirely to mention it. [or instance, the two peaks 
mentioned, Hangover and Hayo, were peaks that would stand 
prominent for all time, and yet, according to the claim of the 
defendant, the line went right over those two peaks and past 
the three very deep gaps and not a word is said about any one 
of them. 

There are two portions of this report that we should like to 
have the Court bear in mind. One is with reference to cross- 
ing the Tennessee River and from thence to the main ridge. 
These words would indicate that immediately after crossing 
the Tennessee River, they were not on the main ridge, but that 
they had to go to the main ridge and that that main ridge was 
a more or less distance (of course we know not exactly how 
much) from the river, and the pertinency of this will be ap- 
parent when we come to show that in the opinion of many 
competent expert witnesses, not only as to the meaning of that 
language in surveying parlance, but that on the ground itself, 


106 


the main ridge commences where the spurs, which are many 
in number, leading off to the river, going northeast, meet, to 
wit, at the point called the junction; and it will be quite ap- 
parent that the ridges which lead from that point toward the 
Tennessee River, are as numerous almost as the fingers on a 
hand, and may be likened to, such fingers, and that if it 1s as- 
sumed to designate anything from that point to the river as a 
main ridge, or the main ridge, there would be a very great dif- 
ference of opinion. 

Some very competent witnesses claim that the Big and Lit- 
tle Fodder Stack form the main ridge, because they have a 
ereater average bulk and altitude. Others claim that the ridge 
going northeast leading off toward the right towards the 
Cheoah River and striking that river, is the main ridge, and 
it seems to be admitted that it does have a greater bulk and 
average altitude than that ridge which is called the Hang- 
over Ridge. 

Some witnesses say, with reference to the Hangover 
Ridge itself, that for two or three or four miles southwest 
of the river, it is not capable of being called a main ridge, 
because from a short distance northeast of the Hangover 
Peak it begins to drop pretty rapidly and drops gradually 
until it gets to the river, and for the first few miles it is very 
much broken by gaps. 

The next language that we want to call to the particular 
attention of the Court is that part of the Commissioners’ re- 
port which speaks of their proceeding to ascertain, run and 
mark the said dividing line, and in the latter part of the re- 
port where they say ‘‘the said dividing line, run by us in its 
whole length is distinctly marked.” So that what we have 
to hunt for is a marked line, and if we can find that marked 
line, we have to a very large extent solved the difficulty. 

It is not saying too much in this case to say that we are 
hunting for the line that the Commissioners actually ran 
and which they set out in their report and the map, and 
which is the line which was confirmed by the legislatures 
of the respective states, and it does not answer to look over 
the country at this day and to pick out where the Commis- 
sioners ought to have run the line, and assume that they 


107 


had no authority to do otherwise and that they actually did 
run that line so picked out, in the face of abundant and con- 
vincing proof to the contrary. If it were otherwise, then 
this Court would be called upon, not to find and relocate 
what was actually once located, but at this late date, to make 
a new location where Mr. Hale and his assistants are of opin- 
ion that the line ought to be. With due respect, there is no 
such question before the Court in this case. We are trying 
to find a line that has already been located, settled and 
marked, and with that object in view, we will examine the 
evidence and see whether there is sufftcient to enable the 
Court to decide that issue. 


TOPOGRAPHY. 


Of course, when the Commissioners commenced their sur- 
vey, they started at a point about sixty-five miles northeast 
of the Tennessee River, but so far as the looks of the coun- 
try in that disputed locality are concerned, it only became 
apparent to them after they got beyond the 59th mile tree, 
which is in the neighborhood of six miles from the river, 
and is the undisputed point at which the expert witnesses 
commenced their surveys for the purpose of this case and the 
previous litigation between private land claimants. 

In going down the crest of the Smoky Mountain, the Com- 
missioners were going in a southwestwardly direction. They 
say so in their report, and the trend of the crest is according 
to that course. It is true that there is not a uniformity of 
course in all of the parts of this line, but for a distance 
northeast of where the 64th mile tree must have been, they 
are going on a course of about south 45 degrees west. The 
- 59th mile tree is plainly marked with the figures 59 and 
M., indicating that the Commissioners report that they 
marked the end of each mile, is a description of what they 
actually did. 

In going down the crest of the Smoky Mountain, when 
they get to a point where they have a clear view of the Ten- 
nessee River and the country on the southwest of it and ap- 
proaching it in a southwestwardly course at the angle above 


108 


mentioned, they are looking straight at the Fodder Stack 
Ridge. When they got to the point where the 64th mile 
tree would be, about half a mile from the Tennessee River, 
the map in the case will show that they drew a straight line 
from that point to the mouth of a creek, which they do not 
name, but which at the angle of South 75 degrees West could 
be no other than the Slick Rock Creek, for there is no other 
stream comes in at that point, nor anywhere near it. In 
approaching the Tennessee River, however, they marked a 
tree on a more direct course to the river mentioned as tree 
No. 29, a hemlock, and then marked other trees, down the 
North bank of the Tennessee River and crossed to the mouth 
of Slick Rock Creek. 

In approaching the river, the Slick Rock Creek is the 
only stream in proximity to the line on the right, at a dis- 
stance of about half a mile down the river. The Cheoah 
River is about 1% to 1% miles to the left, and according to 
the witness Wilson, would not be visible in the summer time 
from the Hangover Ridge. The angle at which the Slick 
Rock Creek runs into the Tennessee River is about a right 
angle, whereas the Cheoah River, according to Exhibit ‘D” 
to the testimony of W. D. Burns, looks like a continuation 
of the Tennessee River itself, and beyond that, what is 
really the Tennessee River, might, according to the plat, be a 
branch and not the main river; and it is apparent that if 
the line ran to the mouth of the Cheoah River to the left and 
went for any distance up the stream, it would be going about 
at right angles to both of the lines as claimed by the con- 
tending States, and the surveyors and Commissioners would 
be going further away from the line as claimed by either 
party at every step they took. Furthermore, the Cheoah 
River is too large and swift a stream to be crossed and re- 
crossed by a surveying party, and even if the angle of 
South 75 degress West was a mistake, and should be South 
75 deg. East, then according to the testimony of S. S. Gan- 
net, one of complainants’ witnesses, record page 499, such a 
line drawn to the East would not strike the mouth of 
Cheoah River, but would strike the dry land about a quarter 
of a mile away. 


109 


At a point on the same Northern part of the line there 
are ridges that go off from the Smoky Mountain. One ot 
them, called the Lester Ridge, runs to the right and passes 
the mouth of Slick Rock Creek and the country between the 
end of the 64th mile and a point opposite the mouth of Slick 
Rock Creek on the Northeast side is very rough and practi- 
eally impassable. 

Another ridge goes off to the left and reaches or passes 
a point opposite the mouth of the Cheoah River, but on neither 
of these ridges passing to the right or left did any one of the 
surveyors find any State Line marks, with the exception of 
McNab, who claims to have found marks on the ridge lead- 
ing to the left and striking opposite the mouth of Cheoah. 

Looking from the end of.the 64th mile across the river 
in the direction of about south 45 deg. west, according to the 
testimony you are looking right at the Fodder Stack Ridge. 
From the junction ten miles southwest of the Tennessee 
River there is testimony that you have to go down from 300 
to 500 feet to get on to the Fodder Stack Ridge, and that 
ridge in approaching the river shoots off a spur or minor 
ridge, which extends to a point on the Slick Rock Creek 
about five miles from the river, but the main ridge continues 
sheering off further to the left and strikes the Tennessee 
River a mile or so below the mouth of Slick Rock Creek, and 
for a certain part of this distance it is called the Little 
Fodder Stack Ridge. 

Just opposite tree 29 is a bluff rising straight from the 
river, about eight or nine hundred feet high, and for a 
distance of at least four miles, according to the testimony 
of the complainant’s witnesses, the ascent is quite gradual, 
until you get into the proximity of the Hangover Peak and 
it is broken up by deep gaps, the principal ones of which are 
Big Fat Gap, Scurwood Gap and Slick Rock Gap. The 
two peaks called Hangover and Hayo, which are about. halt 
a mile apart, are very high, but are in the neighborhood of 
six miles from the river. Going over the Hangover Peak 
towards Tennessee River, there are two or more ridges that 
break off from the Hangover Ridge so called at different 
localities between the Hangover Peak to the river, one of 


110 


which runs from the so-called Hangover Ridge to the mouth 
of Slick Rock Creek. Another goes off to your right when 
coming in a northeast direction and strikes the Cheoah River 
some miles above its mouth, while from that again is another 
ridge that strikes almost at the mouth of the Cheoah River 
and seems a continuous ridge with the one heretofore men- 
tioned as going off to the left of the 64th mile tree north 
of the river towards Cheoah River. 

The bluff just opposite tree 29 extends along the south 
bank of the Tennessee River for quite a distance on either 
side, at least a quarter of a mile each way, and the river 
right there is impassable. A person desiring to cross the 
river right at tree 29 would find that he would have to go 
up as far as the mouth of Cheoah in order to make that cross- 
ing and come back. 

Both Muller and Hale, witnesses for the defendant, state 
that strangers in the country desiring to cross the Tennessee 
tiver and eventually get on to the Hangover Ridge would 
naturally take the ridge on the north side leading to a point 
opposite the mouth of the Cheoah River, cross there and as- 
cend the ridge which goes to the mouth of the Cheoah 
River on the south side and thence to the Hangover Ridge, 
reaching the Hangover at a point two or three miles from 
the river, and it seems to be agreed by the defendant’s wit- 
nesses that the ridges leading up on the south side of the 
river to the mouth of Cheoah is really the commencement of 
the main ridge on that side of the river, rather than the so- 
called Hangover Ridge itself from a point opposite tree 29. 
There is a difference of opinion among the witnesses as to 
which is the main ridge on the south side of the river. Of 
course, this is not any difference between them as to what 
you see there, but an opinion as to which is the more bulky 
range, and therefore which is the main ridge. 

The comiplainant’s witnesses are of opinion from what 
they saw that for a distance of several miles from the Ten- 
nessee River on the south side the Fodder Stack range has 
greater bulk and average height, but the defendant’s wit- 
nesses, basing their opinion largely on the superior altitude 
of the two peaks mentioned on the Hangover Ridge, think 


am fat 


that that is the main ridge, although they admit that the 
part that goes off toward the mouth of Cheoah River on the 
south side of the river is the main ridge from the point where 
it starts apparently away from the Hangover Ridge to the 
river going in a northeasterly direction, and if strangers 
would take that route, in order to reach the Hangover at 
some point southwest of the river and thence reach the junc- 
tion, it is hard to see why the surveyors who first went there, 
who were strangers to the lne, would not do the same 
thing. 

Others, and among those others, Gannet, Bogle and Hyde, 
(Record 497, 824 and 844) are of the opinion that the main 
ridge mentioned in the report of the Commissioners com- 
mences at the Junction, for after you reach that point, it 
is practically one ridge; whereas, to the northeast of that 
and approaching the Tennessee River, the ridges spread out 
like the fingers on a hand, and that the very fact that there 
could be so much difference of opinion as to which is the 
main ridge, in which the Commissioners must have shared, 
led them to select the junction as the commencement of the 
main ridge; and that is why the Commissioners in their 
written report used the words “from the Tennessee River 
to the main ridge,” rather than “from the Tennessee River 
along the main ridge.” 

The main ridge was not known as the Unaka Mountain 
right at the main ridge (See stipulation Record, 782) and 
was not known by that name until you reach a point about 
five miles further, or in other words, about fifteen miles 
from the river. Witnesses for the complainant viewing 
the premises thought that the most natural selection by the 
Commissioners, as they must have been looking directly at 
it, would be the Fodder Stack Range, and that the method 
of striking the creek and going up the creek about five miles 
to the ridge and thence to the Fodder Stack was the easiest 
and most natural way of getting to that main ridge. So 
that the topography at this point does throw some heght on 
the question, but different surveyors, all equally familiar 
with the topography, and we assume equally honest and 
competent, draw different inferences, and, if the Commis- 


112 


sioners were in the same plight, and we are bound to assume 
honestly, took a certain course according to their best judg- 
ment, and that course as reported, mapped and marked was 
confirmed by the legislatures of the two States, who can com- 
plain, or who can even say that they ought to have judged 
for instance as Mr. Hale judges; or who can say that they 
did not honestly exercise the discretion, however little it 
might be, given to them by the Acts of the Assenibly ¢ 

When you come to the lower part of the line that is in 
controversy, from County Corners and Laurel Top on, you 
find that there is apparently a continuous ridge still in a 
southwestward direction called the State Ridge, which is 
the ridge along the line run according to the contention of 
the complainant, and which we think quite evidently was so 
named because the line ran along it. This ridge for the 
first two miles is higher than any other ridge, and in going 
from it, the ridge around the waters of Tellico by McDaniel 
Bald where the State of Tennessee claims the line to be, you 
go down a distance of nearly four hundred feet and al- 
most at right angles. In continuing down the State Ridge, 
you pass the holly tree plainly marked ‘86 M” and reach 
Jenks Knob at a distance of about five miles, whereas, in 
going around the other ridge as claimed by the defendant, 
the distance is about six miles further and misses the 86th 
mile tree; in other words, comes out at a point about a mile 
and a half further south than the 86th mile tree. So that, 
that tree could not be on or anywhere near the line as claimed 
by the defendant, and the Tennessee contention is in the 
shape of a pocket or loop, and the 101st mile tree would 
have to be abont 106 miles. From that point to the ex- 
treme southern end of the line is undisputed. 

It would further appear that if you attempted from the 
extreme northern limits of the survey, as made by the com- 
missioners In 1821, to follow the divide of the waters, you. . 
would not get anywhere near the Tennessee line as claimed 
by either party. This only appears in the testimony of S. 
S. Gannet; but we believe is nowhere contradicted. So, that 
to follow the water-shed would lead the surveyor astray. 


1138 


THE COMMISSIONERS’ MAP OF 1821. 


This map, at the time of the original hearings in the case 
of Hebard v. The Beldings, had not been discovered. It 
afterwards became the ground work of an application to file 
a bill of review in that case and has played an important 
part in this case. It has been the subject of a great deal 
of criticism. 

Commencing with W. D. Hale, whose testimony on the 
bill of review in the last mentioned case has been incorporated 
into this record by stipulation, it is desirable to call the at- 
tention of the Court again to the fact that Hale might be 
called the dominant factor among the surveyors who worked 
for and testified for the State of Tennessee, and to reiterate 
that in making his survey in 1896 and 1897, after discov- 
ering the undisputed line northeast of the river, he looked 
over the country southwest of the river, and what induced 
him to make up his mind as to where the State Line ran, he 
was asked the question (Record 1326), from what he formed 
his judgment, and in answer said that his running the lines 
did not affect it; that he formed his judgment from the com- 
missioners’ report and the topography. And further, having 
been asked if without the Commissioners’ report, the topog- 
raphy would “have been of any service to him in forming 
his opinion, he answered that it decidedly would, and when 
asked for his reasons, stated that it was because it was the 
most natural boundary and the most prominent ridge. 

In other words, taking the language of the laws and the 
Commissioners’ report, and putting his own construction upon 
them and forming his own opinion as to which was the main 
ridge, he concluded that the Hangover Ridge in that part 
of the undisputed line just southwest of the Tennessee River 
was where the Commissioners ran the line, and his survey 
and the marks had little if anything to do with it. 

It will be found on examining his testimony that this judg- 
ment, formed in the manner indicated, shaped every subse- 
quent action as shown in his testimony, and we think we do 
not do him injustice when we say that all of his subsequent 


2780---8 


114 


examinations of the line and what he says about it, are made 
to conform to that preconceived opinion from which he was 
unable to get away; and while with reference to the forma- 
tion of an opinion correctly by Mr. Burns with that map 
before him, he made up his mind that the line could not 
strike the Little Fodder Stack Range, Williams was asked 
whether in twenty-four hours a surveyor could make up 
his mind where that line ran southwest of the river, yet it 
seems to be apparent that after Mr. Hale got to the point 
on the undisputed line northeast of the river, from which 
he could look over the topography to the southwest of the 
river, it did not take him even that long, nor anywhere near 
it, to form his judgment as to where the line ran, and it is 
apparent also that Hale’s controlling idea was not to find 
where the line was actually run, but to ascertain where it 
ought to have been run. 

Mr. Hale in his surveys used a compass, and with refer- 
ence to that method of surveying, especially in a rough, moun- 
tainous country, and as distinguished from the accurate re- 
sults obtained by the use of the transit, we quote from Pro- 
fessor Gillespie’s work on surveying, as revised and enlarged 
by Professor Staley, President of the Case School of Applied 
Science, published by D. Appleton & Co., of New York, in 
1908, Volume 1, page 197. In discussing the transit, the 
author says in reference to the compass: 


“Tt is little used in connection with the transit, 
which is so incomparably more accurate, except as a 
‘check’ or rough test of the accuracy of the angles 
taken, which should about equal the difference of the 
magnetic bearings.” 


And on page 111 of the same volume, under a paragraph 
headed, ‘“‘Defects of the Compass,” the author says: 


“The compass is deficient in both precision and cor- 
rectness. The former defect arises from the indefi- 
niteness of its mode of indicating the part of the cir- 
cle to which it points. The point of the needle has 
considerable thickness; it cannot quite touch the di- 
vided circle; and these divisions are made only to 


115 


whole or half degrees, though.a fraction of a division 
may be estimated or guessed at. The Vernier does not 
much better than this, as we shall see when explaining 
its use. Now, an inaccuracy of one-quarter of a de- 
gree in an angle, that is in the difference of the direc- . 
tions of the two lines, causes them to separate from 
each other 5 1/4 inches at the end of 100 feet; at the 
end of 1,000 feet nearly 4 1/2 feet, and at the end of 
a mile nearly 23 feet. <A difference of only one-tenth 
of a degree, or six minutes, would produce a differ- 
ence of 134 feet at the end of 1,000 feet; 914 feet at 
the distance of a mile. Such are the differences 
which may result from the want of precision in the 
indications of the compass. 

‘But a more serious defect is the want of correct- 
ness in the compass. Its not pointing exactly to the 
true North does not indeed, affect the correctness of 
the angles measured by it. But it does not point in 
the same or in a parallel direction during even the 
same day, but changes its direction between sunrise 
and noon nearly a quarter of a degree, which will be 
fully explained hereafter. The effect of such a differ- 
ence we have just seen. ‘This direction may also be 
gradually altered in a moment without the knowledge 
of the surveyor, by a piece of iron being brought near 
to the compass, or by some other local attraction, as 
will be noticed in Article 186.” 


The complainant’s witness, D. B. Burns, used the transit 
and states that a survey by such an instrument is almost 
absolutely accurate. When Burns and Gannet were survey- 
ing together, Gannet testifies that he used the same instru- 
ment that he used in locating the line between the states of 
Idaho and Washington, and used the methods that are the 
standard methods of the United States Government. With 
this information, it can be readily seen that not only an 
original compass survey, but that the testing of all other sur- 
veys and plats are subject to all of the inaccuracies of the 
compass itself. | 

With this map before him, his criticisms of that map and 
the line indicated by it, arise from the following considera- 
tions, which to his mind seem to carry conviction. 


116 


He says (Record 1126), that it 1s not possible to get 
accurate angles from the map of 1821, and that the courses 
and distances could only be approximated. It may be well 
to remark here that the scale of that map was 800 poles 
to the inch, and it means that 1/100 of an inch represents 
132 feet. 

On the same page of the record, in describing his attempt 
to ascertain the line by that map, he states that he crossed 
and re-crossed into the States of Tennessee and North Caro- 
lina and was at times entirely down off of the mountain. 

As in testing the Davenport notes, as we shall hereafter 
show, so in testing this map he must have paid no attention 
to the fact that that kind of surveying, as all of our wit- 
nesses testified, is done by sighting straight lines from one 
natural object to another, but measuring around the meand- 
ers, and on page 1127, he states that it is not possible to 
locate the line up Slick Rock Creek with that map, and that 
the stream marked ‘‘creek” cannot possibly be Slick Rock 
Creek; and in his opinion that map is only a sketch map, - 
and that they sketched the Cheoah River and called it a 
creek. 

Whatever may be the deficiencies of this map, there is one 
thing that it shows cannot be the case, and that is the claim 
agreed that the line crossed directly from Tree 29 a short 
distance northeast of the river to the bluff on the southwest 
side of the river, and thence along the Hangover Ridge. It 
does fix irrevocably the fact that they crossed at some stream, 
and the question on page 1127 is predicated upon that 
showing. 

Now, as shown by the map, from about the locality of the 
64th mile tree there is a straight line drawn, a mile in length, 
as measured on the map, south 75 degrees west to the mouth 
of Slick Rock Creek, or a stream. In descending the line on 
the northeast you come down at an angle of about south 45 
degrees west. Shek Rock Creek is about half mile to the 
right, and that line is drawn to the right, while Cheoah River 
is a much larger stream about a mile and a quarter to the 
left, and even if that straight line to the mouth of Slick Rock 
Creek by mistake was made south 75 degrees west, and the 


dsukds 


commissioners meant south 75 degrees east, in one mile it 
would still strike a considerable distance away from the 
mouth of-Cheoah Creek and would not even reach the Tennes- 
see River, but would be a short distance northeast of it on 
dry land. Furthermore, Slick Rock Creek strikes the Tennes- 
see River at about a right angle, whereas as shown by Exhibit 
“PD” to the deposition of Burns, facing page 256 of the record, 
Cheoah River might be considered simply by looking at it, 
as the continuation of the Tennessee River instead of a 
branch, and it runs almost at right angles to the line as con- 
tended for by either State; and if the line was carried up that 
river, it would be getting further and further away from 
either contention. In addition, if the Cheoah River were in- 
tended to be the stream, no one of the subsequent courses and 
distances would fit it in any way, shape or form, and Wil- 
liams, one of defendant’s witnesses, says that in going over 
Hangover Ridge you could not see Cheoah, but that if you 
could see it, no one could fail to perceive that a line run- 
ning up that river would be running almost straight into the 
State of North Carolina. 

On the same page (1127) he speaks of that line as cross- 
ing the Tennessee at right angles and that therefore it must 
have crossed directly from Tree 29. This same criticism in 
different words is advanced by other witnesses for the defend- 
ant. For instance, it is said that that line appears to carry 
the State Line across the Tennessee River upon the same line 
that it strikes the river, and therefore it must have crossed 
at Tree 29. A more fallacious train of reasoning could hardly 
be devised. 

The Tennessee River right there takes a bend to the north, 
or possibly northeast, for a short distance, and a line there- 
fore might come in an absolutely contrary direction from 
Tree 29, cross the river, and yet cross it at right angles. It 
is quite supposable that a line would cross the river upon the 
same line at which it approached it, and yet to know where 
that line is located is entirely dependent upon the point 
where the line reaches the river; and a line might cross the 
Tennessee River a hundred miles away at right angles, and 


118 


yet in no way be shaped like a line running directly across 
from Tree 29. 

On 1128 he explains why he thinks that the stream marked 
“creek” is Cheoah River, but further along in his testimony 
says that it would have been absurd to suppose that the com- 
missioners went to Cheoah River, and although he couples 
it with the equal absurdity in his mind, of thinking that it 
went to Shick Rock Creek. But, on the last page mentioned, 
he describes the ridge on the north running off towards 
Cheoah, and also the one on the southwest leading to the 
mouth of Cheoah, which latter ridge he says is the main ridge 
on that side of the river, and states that those two spurs 
would to strangers seem to be the line to take and thus get 
to the Hangover Ridge over what he calls the main spur to 
the mouth of Cheoah. 

On 1129 he describes the spur or ridge running to the 
Hangover from the mouth of the Slick Rock Creek and states 
that the shading on the map south of the river would indicate 
that the slope of the ridge was on the side where the shading 
is, and that they were on the top of a ridge and south of the 
river on the map of 1821, and that it indicates that after a 
distance from the river they were on the top of a ridge. This 
distance is elsewhere stated to be about two miles from the 
river. 

On page 1130, in criticising this map, he proceeds to give 
the angles, five in number, although he has previously stated 
that the courses and distances could not be ascertained from 
that map. On the same page he says there is no ridge in 
the neighborhood of the mouth of Slick Rock Creek that could 
possibly conform to this map, and that the angles and dis- 
tances of the 1821 map would not follow the ridge or crest. 
It seems to us that this is an admission of the case that that 
map, which is solemnly filed by the Commissioners as show- 
ing the line by its courses and distances, does not indicate 
that just south of the river the line runs on the Hangover 
Ridge, or any other ridge, for a distance of five miles; that 
it is just our contention. 

Furthermore, on page 1131, that the map does not show 
that the line followed Slick Rock Creek for a distance of five 


119 


miles. The point about that is, and the testimony shows as 
a customary method, that the topography is merely sketched 
in and that Slick Rock Creek is inaccurately sketched on the 
map. 

There is not a map in evidence in the case on either side 
that is not admitted to be a mere sketch map, so far as the 
general topography is concerned, and that it may be reason- 
ably accurate, or very inaccurate, is shown by many maps. — 

The witness continues that about a mile and a half from 
the river the map shows that the commissioners were on the 
crest of some ridge, and that no surveyor could take that map 
and locate any ridge they were following; that it is so in- 
accurate, the scale is so small that there are no names indi- 
cated for mountains or streams, and that the witnesses would 
not know how to follow that map, even where the line is un- 
disputed. That it is misleading. He says the general south- 
west course of the map is approximately correct and as a 
sketch map to show that they followed the crest of a ridge 
and crossed streams it is correct, but, as to showing what 
ridge they followed, and where they crossed streams, the map 
is not worth the paper it is written on. And furthermore, 
that it does not show accurately the ridges around Tellico. 

Upon cross-examination, Record 1133, he states that in 
connection with Mr. Muller he took the bearings off of this 
map, taking each course separately, from the 59th mile tree. 
This is a strange admission after stating that it is impossible 
to get the courses and distances from that map, and on page 
1135 he gives the courses and distances for seven miles south 
of the river to where the line of that map takes a bend to the 
left, as running south 44 1-4 degrees west, and for the next 
three miles as south 20 degrees east, which are a very close 
approximation to the true distances and courses according 
to the true meridian. 

He states that from the river to Hangover on his map is 
south 8 degrees west, and from Hangover to the junction 
south 60 degrees west. 

On re-examination he continues to reiterate these general 
objections, and concludes that there is no possible way to 
locate the line except over Hangover. On 1140 he states 


120 


that the shape of the stream marked “creek” would nearer 
fit Cheoah, and in answer to the question ‘‘Taking the calls 
as reported by the Commissioners and this map, and speak- 
ing from your knowledge and experience as a surveyor, where 
did these Commissioners locate that State Line?’ he says first, 
“On Slick Rock Lead” and changes it to ““No, on the Hang- 
over Lead.” 

On 1141 he still stresses the shape of the stream and states 
that the map is utterly worthless, and that you cannot take 
the map and scale the courses and follow the actual marked 
line, and that the inevitable result is that they must have 
gone over Hangover. 

If he could not follow the marked line, he must have meant 
that the marked line was up Slick Rock Creek. On 1142 he 
says no stream comes in opposite Tree 29, and that Shick 
Rock Creek is on the right and Cheoah on the left, and that 
Slick Rock Creek runs northeast for several miles and Cheoah 
northwest. 

In connection with the location of some point on the south 
side of the river, which seems to have been unlocated on that 
map, the witness John L. Wilhams for the defendant, is 
asked whether or not there would have been any difficulty 
in designating such point, inasmuch as even according to the 
scale of that map it would only require a line of about a 
quarter of an inch, then to say there is difficulty in locating 
a point at the mouth of Slick Rock Creek by a line from the 
64th mile tree, which according to the scale of the map would 
be 4/10 of an inch, and to say that it is impossible to get 
the courses and distances from that map is to our minds in- 
correct, because with a meridian, a ruler and a protractor, 
any course or distance on that map could be ascertained even 
by an amateur, if it were visible to the naked eye, and it will 
be seen when we come to the testimony of the complainant’s 
witnesses, that there is no difficulty whatever in locating the 
hne by that map. 

In the territory below around Tellico, this witness on page 
1181, states that he does not know how he would run from 
the calls of the Commissioners’ report, leaving out the words, 
“extreme height”? and confining it to the distances, from 


Laurel Top he would go by the State Ridge. On page 1187 
he states that on the whole, you do not travel southwest to 
get to points along the line surveyed by the witness, and on’ 
page 1212 he says eliminating the etching and taking the 
line alone, 1t would not go around Tellico River, and that 
on his map Shek Rock Creek and Little and. Big Fodder 
Stack were only sketched in, and on page 1227, he states that 
the map of 1821 is a sketch map. 

On page 1634, he says that the map of 1821 could not 
have been made from the Davenport notes. That the com- 
missioners might have run up Slick Rock Creek, but only 
tentatively. That the time of their survey was too short; 
and on page 1635, he says, ‘‘I believe the commissioners ran 
the State Line down the State Ridge, crossed the Tellico, but 
abandoned that line.” : 

John L. Williams, a surveyor of Polk County, Tennessee, 
whose testimony begins at Record 1403, of whom I can say 
that I think he tried to be fair as much as his surroundings 
would permit it, and I feel quite sure that he was the most 
competent surveyor on that side of the case. 

It is true that he viewed the ridges southwest of the river 
much as Hale did, but he says the abrupt turn six or seven 
miles south of the river seemed to show that they did not 
go over Hangover Ridge, and that he had considered that 
a good deal. | 

He states on page 1414 that to take the shape and the 
alignment of the line alone, the map of 1821 does not con- 
form to either line, but more nearly to the Shick Rock Line; 
but that taking everything else, it more nearly conforms to 
the Hangover. That the etching indicates that there was a 
ridge to the right of where they went up, which he concludes 
to be Hangover or the ridge to Hangover from Shek Rock 
Creek, but there was also a ridge, to-wit, Little Fodder Stack, 
on their right as they in fact did go up. 

He proceeds to compare the shape of the stream marked 
“creek,” and states that at the end of two miles the 1821 
map shows that they were on a ridge and not running five 
miles up the creek. On 1417 he says as a surveyor, if he 
were running up a creek, he would only show the creek. 


122 


That from the Hayo Peak to the Cheoah River the nearest 
point is 4 1-2 miles. 

On page 1423 he says: “I never came to any positive 
conclusion as to the line at Slick Rock Creek, but could never 
see that they could have done anything else than go over 
Hangover,” and reiterates that the plat shows that they 
crossed the river on the same line as they ran to the river, and 
hence that they must have gone directly across. 

At the Tellico, after taking the distance from Laurel Top 
to Jenks Knob alone, that it indicates that the commissioners 
did not go around the Tellico River. On 1448, that if the 
line is marked on the State Ridge, and the distance to the 
101st mile post was 101 miles that way, he would say that 
those things would indicate that the commissioners surveyed 
by way of the State Ridge. On page 1457, he says that 
running in a southwest direction, if you struck any stream 
at all, it would be Shek Rock Creek, and that you could not 
reach Cheoah on that line, and that if.you reached the mouth 
of Slick Rock and went seven miles south 4414 west, that 
you would strike the top of Big Fodder Stack, and thence 
three miles south 20 degrees east, that. you would land at the 
junction and that maps of this kind (page 1458) are not 
intended to be accurately topographical maps, and that Slick 
Rock Creek is incorrectly located. On 1460 he says that no 
other stream than Shek Rock Creek comes in there. That 
the bluff across from Tree 29 is nine hundred feet high. On 
1464 that Cheoah River is about at right angles to Slick Rock 
Creek, and at an angle of 60 to 63 degrees to Hangover, and 
that a line going up Cheoah would be getting further away 
from Hangover and Slick Rock all the time, and that its 
mouth is the nearest point. That the bluff on either side of 
the river extends from Slick Rock Creek to the mouth of 
Cheoah. On 1465 he says, “The fact that I had made up 
my mind from observation that Hangover was the main ridge, 
was one of the controlling factors in my mind.” 

On 1466 he says that the courses and distances, that is 
such minute distances as 132 feet to 1/100 of an inch, could 
not be shown on the 1821 map; and on 1467 he says, if a 
mistake was made in an angle and he got off the line, but 


123 


there was some object that he knew was on the line, he would 
correct it. That would be customary. That if Hangover is 
the line, the following of a stream for any distance would 
be utterly irreconcilable with it, and that he knows of no 
stream running for an equal distance so near the State Line, 
whether it is on Hangover or Slick Rock Creek, as that creek 
does. 

On 1468 he says the straight south line to the Georgia line 
is undisputed, but it does not follow any ridge and crosses 
one or two small streams not mentioned in the report nor 
on the map. On page 1469 he says, if the map of 1821, with 
the indications on it he has mentioned, and if he had found 
a marked line up Slick Rock and the spur to the Big Fodder 
Stack, those facts would be very controlling and would indi- 
cate that the commissioners went up Slick Rock Creek. As 
previously mentioned, that he personally made no survey at 
all of the river at that point, and on 1477 he says: “It I 
' was absolutely sure of the State Line marks on the Slick 
Rock Creek Line, they would control me.” On 1479 he says 
if he had been among the surveyors originally, he would have 
gone to the mouth of Cheoah. On 1483 that he has never 
been able to reconcile the map of 1821 with either Slick Rock 
Creek or Cheoah. On 1566 and 1567, in reference to an 
error in the Davenport notes between the 71st and 72nd mile, 
he states that the map itself corrects that error. ; 

On 1590 he says, “I knew the North Carolina contention 
went up Slick Rock Creek (1589 and 1590) but I did not 
survey it,” and that in a long survey hke that you cannot 
expect courses and distances to come out right. That the 
way they tested the map and the notes was not a natural way 
to test a survey, and they could not expect it to come out 
right, and that if he were to go out there today and be shown 
the line and the marked trees, if they could be found, that 
he could say that nobody could go along the line plotted in 
red and green and file it as a test of the notes and map. 

On page 1621 he says that it is apparent that the man who 
made the map of 1821 and the man who made the Daven- 
port notes had information of the same survey and the gen- 
eral outlines are alike. That the courses and distances are 


124 


practically one set; in the main they are the same and he 
thinks that by careful work, field notes could be made from 
the map itself, which would make another map which would 
very closely resemble it. 

The above are the only witnesses for the defendant whose 
testimony it seems necessary to consider with reference to 
the map of 1821. What the witness Muller says about it is 
only echoing the opinion of W. D. Hale, and is not nearly: 
so complete and relates mainly to the shape of the creek and 
the ridges. 

It must be quite evident from even a slight consideration 
of the testimony as quoted of Hale and Williams, that the 
question is not so much whether you can obtain from the map 
of 1821 the courses and distances and shape and apparent 
locality of the line, but whether you can fit the line as laid 
down on that map and the field notes of Davenport and the 
marks to some ridge which those witnesses have made up 
their minds is the ridge over which the Commissioners should 
have gone, and therefore did go, and the chain of reasoning 
would seem to be that a map which does not show that the 
line went over the Hangover Ridge, and field notes and 
marks which show that the line went somewhere else, must 
necessarily be worthless, because they have begged the ques- 
tion and already determined that the line went over Hang- 
over. 

The largest and most important part of the testimony with 
reference to the map of 1821, comes from what complain- 
ant’s witnesses Burns and Gannet say about it. The testi- 
mony of D. B. Burns begins at page 226 of the record, and 
on page 233 he says that in making his survey he had the 
plat of 1821 with him. On page 242, that in the neighbor- 
hood of the Tellico country below, the State Ridge tallies 
with the map of 1821. On page 246, that Mr. Gannet com- 
menced at the 59th mile tree, which is exactly 6.02 miles to 
the Tennessee River at the mouth of Slick Rock Creek, which 
he found from the use of the map of 1821 and the measure- 
ments, and that from there to the Tennessee River, as con- 
tended for by the State of Tennessee, it is only 5.47 miles, 
to the south side of the river, and that according to the map 


125 


of 1821, from the river to the junction is ten miles, and from 
the 59th mile tree to that junction 16 miles; whereas by the 
Tennessee contention it is only 14 miles. On page 247, he 
says that according to his bearing on Exhibit “D,” from the 
59th mile to the 65th it is south 55 degrees, 5 minutes west, 
but on the map of 1821 it is south 58 degrees west, and south 
of the river to the first short turn to the left on the map of 
1821, from the 59th mile tree to Big Fodder Stack on Burns’ 
plat is south 49 degrees, 40 minutes west, while the 1821 
map shows 50 degrees 40 minutes west, and Hangover is 
south 29 degrees 8 minutes west. That from the south bank 
of the Tennessee River to Fodder Stack, according to his 
measurements is south 44 degrees 28 minutes west, while the 
map shows. south 43 degrees 25 minutes west, and from the 
south bank of the Tennessee River to Hangover is south 9 
degrees 29 minutes west. And the witness states that he 
could locate Big Fodder Stack on the 1821 map. 

On page 248 he says Hangover does not tally with the 
1821 map, it breaks to the right instead of to the left. That 
the Tennessee River to Big Fodder Stack is shown to be 6.67 
miles, while on the Tennessee contention Hangover is 5.9 
miles from the river, and by the North Carolina contention 
the line from Big Fodder Stack to the Junction is 3.37 miles, 
and by Hangover 2.59 miles; and that the 1821 map shows 
31-3 miles. From Big Fodder Stack to Junction is south 
18 degrees 12 minutes east; from the 1821 map is south 19 
degrees 15 minutes east, while from Hangover to the junc- 
tion is south 60 degrees west. 

On record 249 he savs that the North Carolina contention 
agrees with the 1821 map, and that the witness’ map is exact 
with the 1821 map, and Exhibit “B” facing page 250 of the 
record, is a comparison of the three lines. 

On page 251 he says at undisputed points the Tennessee 
contention agrees with the map of 1821, and at other points 
the trend of the line is different. That map turns to the left 
at about seven miles from the river, while the Tennessee con- 
tention turns to the right, and Exhibit “C” facing page 252 
is a comparison of those contentions. 

On page 253 he says that his plat shows 27.64 miles to the 


126 


86th mile tree, whereas, the Tennessee contention, carrying 
it by way of State Ridge, would be 25.56 miles from the 59th 
mile tree, and that by the Tennessee contention you cannot 
reach the 86th mile tree. And further along it is stated that 
it comes out a mile and a half further down than the 86th 
mile tree. That by his plat, from the 59th mile to Jenks 
Knob is 28.77 miles; by the Tennessee contention 32.82 
miles, and by the map of 1821, 28.01 miles, and that the 
Cheoah River, for a distance of ten or twelve miles is almost 
at right angles to the undisputed line. That the plat shows 
that they followed the creek, and that opposite Tree 29 there 
is a bluff 700 feet high, extending half a mile up and down 
the river, and that there is no ridge there. 

On page 259 he says that the commissioners’ report agrees 
with the plat. On page 261 that the stream marked “creek” 
is sketched in wrongly, but that by the Hangover route the 
first stream would be the Hiawassee River, 37 or 38 miles 
from the Tennessee, and at the 38th mile, two circles that 
seem very close together are in reality intended for the same 
circle. 

On 263 he states that the trail mentioned at the 93rd mile 
comes out just right by the map and that the 101st mile tree, 
which is an undisputed point, was also tested by comparing 
its bearing on his map with the bearing of the 1821 map, and 
they agreed, and thereupon he states what in his estimation 
and opinion is the true location of the line, and why Big 
Fodder Stack Range would be selected. 

On page 270 he says that he made his survey by a transit, 
which is much more accurate, and on 271 that the map of 
1821 must have been made by a compass, and explains on 
page 273 the significance of the straight line on the 1821 
map from the 64th mile tree. 

On 282 he explains the trail at the 96th mile, which is 
a continuation of the trail that strikes it in the neighborhood 
of the 93rd mile. That the straight line from the 64th mile 
tree on the map crosses the Tennessee River at an angle of 
60 to 80 degrees. 

On 285 he explains that surveyors in rough surveying 
would ‘sight from one point to another, but in measuring 


127 


would follow the meanders. That the straight line to Slick 
Rock is over very rough country. He thinks that the line 
that the Commissioners adopted was the line they marked. 
He then says that it is impossible to cross at the 29th mile 
tree, and that the straight line from the 64th mile tree carries 
you very close to the mouth of Slick Rock, and is south 75 
- degrees 30 minutes west; while to the river, as Tennessee 
contends, is south 53 degrees 55 minutes west. 

On page 288 he says that the error in sketching the creek 
would make the hachures come too early. On page 290 he 
says, taking the map of 1821 and starting at an undisputed 
point, it would not be possible to go around Tellico, nor by 
- way of Hangover, and on that page and on 291, that only 
Slick Rock Crecks fits the map and report. That the report 
of the Commissioners mentions the west fork of Tellico, but 
the map does not show it. On 297 he says he first supposed 
the line went up Slick Rock Creek a mile and a half, and 
then went up Little Fodder Stack. 

On page 318 he says: “I tested my survey where I crossed 
the Tennessee River to the top of Big Fodder Stack, and 
compared it with the bearings of the map of 1821,” and that 
he was out to determine from that map whether the line went 
up the Little Fodder Stack or Slick Rock Creek, or over 
Hangover. He agrees that the straight line at the extreme 
southwest end of the survey, reaching the State of Georgia, 
is not due south, and on page 320 explains again the method 
of surveying by sighting various points and measuring around 
the meanders, and on 322 the variations of the needle. 

On 327 he says that streams are only sketched on the map 
of 1821, and that the Tennessee River, which is only 400 feet 
wide, yet is shown on the map to be 3,200 feet wide, and on 
332 that Slick.Rock Creek is about 40 feet wide, and is 
shown to be 800 feet wide. 

On 354 that it is a matter of opinion whether the straight 
line from the 64th mile tree to Slick Rock is the State Line, 
or whether the Commissioners adopted the lne around by 
way of Tree 29, where they marked it. | 

On 358, speaking of where he commenced his survey, he 
says he was carried from there to the Tennessee River, and 


128 


thence to Shick Rock Creek by the map of 1821, and by the 
marks. That the rule in following old maps is to always go 
to the monuments. That it would be absurd to expect to find 
everything on the ground just as on the map, and that certi- 
fied copies of the map of 1821 seem to differ. That the copy 
used by the witness Williams was not like the one he had, 
in regard to the ridges or the creek. That also there was a 
difference in the locality of the path from the valley towns; 
that all of the streams on that plat were exaggerated. On 
361 he says that Shek Rock Creek is only sketched in and 
wrongly sketched; that it is exaggerated in width and length. 

On 361 he describes Slick Rock Creek and states on 362 
that it was the only stream on the right that you could see, 
and that it corresponds with Cheoah at no point. That the 
Cheoah for seven or eight miles is north 45 west; Slick Rock 
Creek for the first mile and a quarter is north 35 east. Of 
course that is going in a northeastwardly direction. 

On 363 he says that the south line at the extreme end of 
the survey, although it is out seven degrees from the true 
meridian, is not deceiving, and in fact the line there is undis- 
puted, and he thinks one reason why it seems so (page 364), 
is that the map is pasted together crooked. On the same page 
he says further in following the waters of Slick Rock Creek 
you get a curve to the jfiinction, concave from the east, as the 
map shows, while in going up Hangover to the Junction you 
get a curve in the opposite direction, concave to the west. 
“My curve is on the 1821 map, and the map was a great 
advantage.” 

That there was a great variation in the general bearing 
from the Tennessee River to the Big Fodder Stack and from 
the Tennessee River to the Junction by way of Hangover, of 
30 or 40 degrees, and from Big Fodder Stack to the June- 
tion, and from the Hangover to the Junction of 40 or 50 
degrees. 

On page 378 he said it would be impossible to indicate 
every bend on the 1821 map, and that the fair way to use 
such a map is to follow a general course. On 379 that the 
Cheoah is a large stream with creeks running into it, and 
that in going around the headwaters of Tellico it would be 


129 


about six miles further than by the State Ridge, to reach 
the 101st mile tree. ° 

The next witness is 8S. S. Gannet, whose testimony begins 
on page 408 of the record. In making his surveys, which was 
partly on his own account and without the assistance or 

presence of Mr. Burns, he states on page 413 that he had 
this 1821 map with him, and on page 414 that his survey 
talhed almost exactly with the 1821 map. That it would 
not tally with that map to go around the headwaters of Tel- 
lico by McDaniel Bald; that around there is twice as far as 
by the State Ridge. That the line as marked agrees with the 
1821 map, and that obviously the other route was so tar out 
of the way, according to the map and marks, that he did not 
deem it necessary to go around that way. 

On page 417, speaking of going northeast, he says the 1821 
map going northeast carries you from the Big Fodder Stack 
route to the forks of Shick Rock, and thence to the mouth 
of Shek Rock, and that the marks carry you over the same 
line. . 

On page 418 he says that he found Burns’ work the most 
accurate that he had ever known in such a rough country. 
That the Slick Rock Creek would be the most natural way to 
reach Fodder Stack and the Junction, and that that would 
agree with the 1821 map. That the other line was entirely too 
far to the east or left. That across from Tree 29 is a very 
steep bank 800 feet high up and down the river, and that that 
would not be a practicable route, for it was too steep, and 
it was practically impossible to survey a line up and down 
that bluff. 

On page 425 he says the Government contour map ex- 
hibit (page 406 of the record), shows the Shek Rock Creek 
as the line, and that the Big Fodder Stack is in a general 
southwest course, and then turns a little east of south to the 
Junction, the same as the North Carolina contention. On 
page 428, that by his survey, it 1s 6.02 miles to the river by 
the Burns and Gannet map, at the month of Slick Rock 
Creek; six miles, by the 1821 map to the mouth of Slick 
Rock Creek, but by the Tennessee contention only five and 


2780---9 


150 


one-half miles to the river, and he confirms what has been 
said about the distances to Big Fodder Stack and thence to 
the Junction, as stated by Burns. 

On 429 he says the stream marked creek on the 1821 map 
can only be Slick Rock. That Cheoah is a mile and a half 
to the east, and could not possibly be the creek. That Slick 
Rock is at almost right angles to the Tennessee River; 
Cheoah is at an acute angle and comes from the southeast, and 
Slick Rock from the southwest. On page 430 that the 1821 
map is a map of a line, not of the general topography. And 
on that page, and two subsequent pages, he states in what re 
spect Hale’s map is very inaccurate. 

On page 433 he says that there is no doubt in his mind 
that the commissioners went up Slick Rock Creek and below 
along the State Ridge, crossed the Tellico and up Jenks 
Ridge, and that in addition to the marked trees which would 
show that line, that the map of 1821 shows it, and it agrees 
in his opinion with the route that would be naturally selected. 
That it is not possible to fit the commissioners’ map to the 
Tennessee contention, and that the map so indicates at both 
disputed places. On 434 that he could locate objects by that 
plat, and its courses and distances and could locate the lne 
with it. 

dn 441 he says surveyors would take a general bearing, 
but measure around the meanders. On 442 that going around 
Tellico you depart from the plat and that he tested Burns’ 
notes from the Junction to the mouth of Shek Rock Creek. 
Among other ways, by the geodetic co-ordinates, and com- 
putations based thereon, which to him proved that the sur- 
vey around Slick Rock was absolutely correct. On 443 that 
the proper interpretation of the Commissioners’ map is that 
the line follows the creek; that the hachures are sketched in, 
and that it would not be possible in running a line from Vir- 
ginia to Georgia to follow the water divide and make it come 
anywhere near Tennessee. And again he says the map of 
1821 by courses, cannot go around Tellico. On 467 he reiter- 
ates that the line around Tellico could not possibly agree with 
the 1821 map. 

On 474 he explains the divergence of the line from the 


151 


creek as shown by the 1821 map. On 478 that no map made 
is absolutely correct. That in following the meanders the 
map generalizes. That the streams are not drawn carefully. 
On page 483 that Brazier’s map of 1833 shows the line up 
Slick Rock, and on 484 that the Cheoah is several miles east 
of the line; that the line down the State Ridge agreed very 
closely with the commissioners’ map. On 491 he says that 
map only shows in a general way the summit of the moun- 
tain and some of the streams and rivers, and that it is cus- 
tomary to sight from one common object to another in such 
a survey. 

On 497 he says that there is no main ridge until you reach 
the Junction; that the ridges spread out like fingers. On 
498 that the photographic copy of the original 1821 map 
shows a line in the center of some shading that is the State 
Line, and that that line strikes exactly in the mouth of Slick 
Rock Creek, and that in this respect it differs from the cer- 
tified copies. That the straight line on the map from the 
64th mile tree lands you at the mouth of Slick Rock Creek. 
On 499 that looking at Cheoah you are looking southeast to 
the left, whereas, Shick Rock is to the right, and to reach 
Cheoah you would go 50 degrees east more than a mile. 
That if that bearing from the 64th mile tree to the Shek Rock 
Creek mouth is a mistake for south 75 degrees east, you would 
still not reach Cheoah, but it would land you on the north 
side of the Tennessee River about a quarter of a mile back, 
and that according to the courses and distances of the com- 
missioners’ map, you could not go up Cheoah, but would be 
getting further away all the time. On page 504 that the 
86th mile tree is several hundred feet south of the Tellico 
River and by the Tennessee contention you would not reach 
it by a mile and a half; the nearest point is Jenks Knob. 

On 510, that from the plat of 1821 and other information, 
he could see that the line could not diverge as claimed by the 
defendant. On page 517 and following, that the calls of the 
Davenport notes correspond very closely with the Commis- 
sioners’ map. 

Whatever other witnesses for the complainant speak of 
this, it might be said that these two witnesses are fuller and 


152 


more accurate, and as in the case of Hale and Willams, 
represent the best phase of the complainant’s evidence as to 
the Commissioners’ map, and it is not necessary to discuss 
the evidence of any other witnesses in connection with 1t, 
under this particular subject matter. 

From the 59th mile tree, on the northeast, to a point where 
Burns commenced about 3 1-2 miles northeast of the river, 
Mr. Gannet made his own survey, and from Jenks Knob 
coming to the north to Laurel Top, he also made his own 
survey. In other parts of the route he went over it care- 
fully and tested the survey of Mr. Burns. 

If there is any disinterested witness in the case, Gannet 
is one. He was deputed by the United States Government, 
at the request of the Attorney General of the State of North 
Carolina, to find, if he could, this line. His experience, 
practical and theoretical knowledge cannot be disputed. He 
had no purpose to serve, except to find the correct line by 
the exercise of the highest skill that could be brought to bear 
upon the subject, with what result, of course, it remains for 
the Court to say; but we do not hesitate to say that our con- 
viction is that his effort was crowned with absolute success. 
There is no effort on the part of either Burns or Gannet to 
carry out any preconceived notion from the looks of the 
country. 

Mr. Burns went at first with the idea that the line went 
up Little Fodder Stack Range, and Mr. Gannet went, so far 
as we know, without any preconceived idea. So that we think 
it may be said that their efforts were directed to the ascur- 
tainment of the line as really located by the Commissioners, 
and therefore it did not oceur to them, nor seem to them 
proper, to discard all of the evidence as to where the Com- 
missioners in fact located that line, because they had an opin- 
ion that the line must be fitted to some ridge, and all informa 
tion as to the fact of location be discarded. 

Whatever may be the deficiencies of the map of 1821, there 
are some things that are settled conclusively by it. Every- 
body concedes that it shows that the State Line crosses the 
Tennessee River on a straight line from about the 64th mile 
tree to the mouth of a creek or stream, and that therefore it 


is.impossible to claim that the line crosses the Tennessee 
River directly from Tree 29 to the Hangover Ridge, and 
thence along that ridge. It also shows that the stream that 
it strikes is to the right, at an angle of south 75 degrees west, 
at a mile from the 64th mile tree, and that would conc!u- 
sively show that it could not strike a stream to the left more 
than twice the distance away, and when a straight line south 
75 degrees east would not even land at the Tennessee River, 
but would land inland more than a quarter of a mile away 
from the Cheoah River. So that, even if the course south 
75 west was an error, the matter would not be mended. 

In the case of the error in the Davenport notes at the 72nd 
mile, the map itself corrects that error, so that so far as the 
line upon the map is concerned, we have a right to assume 
that the course of that is correct. And taking the shape of 
the line, as the defendant’s witne Williams did, at the State 
Ridge, where he testifies that taking that shape alone the 
commissioners could not have gone around the headwaters 
of Tellico, so, in the Slick Rock Creek region, taking the 
shape of the line alone with its curve to the right, concave 
from the east, it is impossible to conclude that: it could fit 
the Hangover Ridge, which curves in the contrary direction 
and is concave from the west, and still less could you fit it 
to the Cheoah River, which is to the left, but runs almost 
at. right angles to the lines as contended for by either State, 
and when every foot as you ascend the Cheoah River would 
carry you further away from the line as claimed by either 
party, and at a distance of five miles instead of being in 
the neighborhood of the headwaters of Citico, which is en- 
tirely in the State of Tennessee, you would be ten miles away. 


DAVENPORT NOTES. 


These field notes bear every evidence of authenticity. A 
copy of the notes themselves is found commencing on page 
624 of the record, and contains every course and distance 
from the start. These notes were found in a secret drawer 
of an old secretary that had been owned by William Daven- 
port, and which had continued with him and his family since 
the time of the survey of 1821. It is in the handwriting of 


154 


William Davenport and his wife, who was in the habit of 
acting very frequently for him as an amanuensis. 

These notes are fully authenticated and identified, either 
as the original or as a duplicate of the original, by W. D. 
Jones (Record 605), who was a grandson of Wilham Daven- 
port, and by Mrs. Emma Harper Cilley (Record, 634), his 
eranddaughter. 

These notes were taken and compared with the map of 
1821, and the survey of Burns, and Mr. Burns personally 
went over the ground with these notes. 

On page 380 he describes the relative situation of Slick 
Rock Creek and Citico Creek, and on page 391 shows that 
Citico heads up next to the ridge between Big Fodder Stack 
and the Junction, and on the opposite side of the mountain, 
some prongs of it head up about at the Junction. ' 

On page 643 of the record commences the testimony of Mr. 
Burns, especially upon these notes. The complainant’s Hx- 
hibit “BB” (Record page 1560) shows a comparison of four 
lines; one run and marked by the commissioners of 1821 as 
shown by their plat; the second is a plat of the surveyed line 
made by Mr. Burns and Mr. Gannet, and the third is a plat 
of a surveyed line made from the Davenport field notes and 
commencing near the bottom of page 645 of the record and 
continuing to page 691, the matter is taken up in detail and 
identified with Burns’ survey and the marks and courses and 
distances of the map of 1821, and it is shown that they all 
correspond with a good deal of accuracy. 

Attention is called to a mistake in the field notes at the 
72d mile, to wit, the course south 30 degrees west 80 poles, 
which should be east, but which Mr. Williams says the map 
itself corrects. 

So far as Mr. Burns is concerned, he amply and in detail 
upholds these notes, and shows that at the crossing of the 
Tennessee River, the notes and the map of 1821 agree as to 
the straight line south 75 degrees west 320 poles; and Mr. 
Gannet, commencing at record, page 692, and continuing to 
717, fully corroborates the testimony of Mr. Burns, and they 
both testify that the map of 1821 and the field notes sub- 
stantially agree and they both substantially agree with the 


155 


survey of Gannet and Burns, and that they fit the North 
Carolina contention, and cannot in any way be made to fit 
the Tennessee contention or the Cheoah River theory. 

On the other hand, Hale and Williams made a test of these 
notes and have a copy of Exhibit “Bb” with that survey from 
the notes and the line on it in red and green. The method 
taken by these witnesses in trying to apply these notes is 
shown by the testimony of Hale, (Record 1622) and cor- 
roborated by the testimony of John L. Williams, commenc- 
ing on page 1550, and the copy of Exhibit “BB” with that 
survey applied to it, faces page 1558 of the record. 

Of course, these witnesses find a wide discrepancy, and 
even on the north side of the river, according to their evi- 
dence, they found themselves getting first over into the State 
of Tennessee and then over into the State of North Carolina, 
and on the south side of the river, when they got to the Junc- 
tion, they found they were a mile and a half from that point 
over on the Citico. | 

In giving their testimony, especially Wilhams, they 
enumerate some thirty or forty discrepancies between the 
notes and the survey of Burns and in the map of 1821. We 
presume they used a compass and a protractor in making 
this comparison, and on cross-examination, however, Williams 
corrects a great many of his discrepancies, and in several 
instances acknowledges that he was entirely wrong. 

Now the manner in which this comparison was made and 
these notes run out on the ground, was that they simply 
measured the lines as they conceived them to exist and dis- 
carded every natural object and every mark. On page 1,585 
it is shown that they did not regard, or even hunt for any of 
the trees. That they found the Equonettly path, but they 
discarded that and the gap as well. They discarded the 
creek, and on page 1,589, Williams states that they could 
not find a mile tree so marked from the 59th to the 64th 
mile, and therefore paid no attention to mile trees, although 
the position of those is undisputed. That he did not go to 
the creek with the survey, and in that respect departed from 
the calls; and that he knew that the North Carolina conten- 
tion went up that creek, but that he did not survey to it. 


On page 1,590 he admits that in a long survey like this, 
if you discard all natural objects, you cannot expect the 
courses and distances to come out right. And in answer to 
question 104, which is this: | 

Q. “And it therefore would not be a fair way of running 
a line where the natural objects were discarded of an old 
survey, would it?’ To which he answers: A. “No, I 
could not expect it to correspond with the original survey.” 
And he says that if he went out there today and was shown 
the trees, he would say that nobody could follow the lines 
plotted in red and green. 

He then says on page 1,591 that these notes must have 
been the record of some survey; that they could not come 
from the imagination. On 1,592, that in following those 
calls of the notes he would consider it necessary to cross at 
the creek, and on 1593 that the notes indicated that the sur- 
vey was going the general turn rather than getting every 
minute detail. 

This witness further states that it was his observation on 
the ground that affected his belief and not the Davenport 
notes at all, though he adds that he cannot say that the 
Davenport notes cannot be made to fit the North Carolina 
contention, but he does say that they would not show the 
Tennessee contention, and that the North Carolina conten- 
tion and the field notes both cross a creek at its mouth, while 
the Tennessee contention dees not, and that the Davenport 
notes do show that the line circles around from the right to 
the left, while the Tennessee contention would circle around 
from left to right. 

On 1,595 that the Davenport notes more nearly fit the 
North Carolina contention. On page 1,598 he says that if 
a survey had been made through there and sometimes would 
take a single course for a mile distant, and sometimes for 
half a mile, that the running and marking would have had 
to be around and not follow the course of the compass across. 

On 1,600 he explains that the word “sketched” as used 
among surveyors, means that it is not the result of an accu- 
rate, actual survey, but simply an approximate idea of -the 
maker’s knowledge of the location generally. Commencing 


137 


on page 1,601, the witness is cross-examined on the subject 
of his alleged discrepancy and that continues for. several 
pages, and this cross-examination serves to show that the 
witness in his previous examination had made several er- 
rors, and that in other respects his statement of discrepan- 
cles was subject to grave doubts. On page 1,621 he says 
that it is apparent that the man who made the 1821 map and 
the man who made the Davenport notes had information of 
the same survey; that the general outlines are alike and the 
courses and distances practically one set, and that in the 
main they are the same. That he thinks that by very care 
ful work, field notes could be made from the map itself, 
which would make another map which would very closely 
resemble it. : 

Under the circumstances we do not feel that it would be 
usetul to take up too much space or time to go into any very 
great detail of this testimony. ‘he manner in which the 
test was made by Hale and Williams, under directions sim- 
ply to take the lines:as they conceived them to be (we mean 
the courses and distances from the field notes) and lay them 
on the ground, and that was done, and every test: that an 
ordinary surveyor would make to correct or check the result 
of the courses and distances was to be ignored, and in ignor- 
ing those, you ignored every test of the accuracy, even of the 
witness, in drawing off these courses and distances, and in 
laying them on the ground with the compass and their own 
measurements with all of the inaccuracies to which the com- 
pass itself is subject. - So that the result of that work, by 
their own admission is a conglomerate of the inaccuracies 
of the notes (if any there be), and also of the surveyors and 
the witnesses themselves and the instruments that they used, 
and this method condemns itself. 

Commencing at the 64th mile, and where it says crossing 
the Tennessee River to a large white pine on the south side 
of the river to the mouth of a large creek and the 65th mile 
on a course south 75 west, and at a distance of 320 poles, and 
from there on where it mentions at the end of each mile the 
trees and the creek itself and lands at the end of the 72d 
mile on-a ridge between the aforesaid creek and Citico Creek, 


138 


with the investigation that Messrs. Burns and Gannet have 
made of that locality, and the notes of the survey, certainly 
there can be no possible question that so far as these notes 
are concerned, Hangover Ridge and Cheoah River are abso- 
lutely out of the question, and the same result happens be- 
low for instance at the end of the 86th mile (record, 632) 
the bearing south 60 deg. west 320 poles to a holly tree, the 
86th mile tree, which a line around the Tellico River could 
not reach by a mile and a half; the measurements and the 
shape of the line itself point to the line along the State Ridge 
inevitably, and all of these things make the contention of 
the State of Tennessee at both points absolutely untenable. 


THE MARKED LINE. 


In the testimony of W. D. Hale (record, 1311), intro- 
duced into this case from the case of Hebard against Beld- 
ing, by stipulation, Mr. Hale says on page 1,313 that he 
surveyed the Iiangover Ridge and gives a long list of trees, 
bat there are only two of these trees that we desire to single 
out. One is a double sourwood in a gap, which he says was 
plainly marked, a fore and aft tree, with State line marks, 
about a mile from the river and three-quarters of a mile 
from the river he found a black oak, marked as a corner and 
some slight indications of marks as if it had been marked 
as a line tree on the State line. Of these two trees he pro- 
duced blocks in the Hebard case, and they were the only 
blocks produced therein. 

In looking for trees on the other line as contended for by 
North Carolina, he ignored all side line marked trees. In 
the case of Hebard v. Belding, as reported in the 103 Fed- 
eral Reporter, the court assumes that there were two, or 
probably two, State line trees on the Hangover Ridge, but 
that the other line was the better marked line, and mentions 
that forty-one trees marked with State line marks were found 
on that line. 

Hale says that the 86th mile tree (record, 1125), is un- 
disputed. That the black oak that he mentions (record, 
1,336), 1s on the ridge leading from Hangover to the Slick 


159 


Rock Creek, and that the sourwood tree was decayed inside 
so that its age could not be determined. 

Willams (record, 1,433), says that he saw no trees on the 
Hangover Ridge that satisfied him that they were State line 
trees, and on 1,434, that it was not practicable to count the 
age of the marks on the sourwood. 

All of the witnesses for the complainant, to wit, Burns, 
Gannet and Chambers, record, 555 to 559; Slagel, 760; 
Crisp, 562; Lovingood, 567 and 572; Bogle, 814 to 816; 
Hyde, 826 to 839, and Carver, 851 to 860, searched the Hang- 
over Ridge and found no marks anything like the State line 
marks. William Jenkins (record, 167), who was acquaint- 
ed with the Slick Rock Creek from the year 1859, says that 
he saw at that time the spruce pine at or near the mouth 
of Shick Rock Creek, about twenty yards from the mouth, 
which since hag been destroyed by storm or fire. — 

Patten, at 369 of the record, in 1867 was investigating 
the question of taking over from his father in law two tracts 
of land on Slick Rock Creek, which had been entered in 
1854, and in tracing the line found that same pine tree, 
marked with such marks as satisfied him that they were the 
old marks, and that this tree was ten or twelve steps below 
the mouth of Slick Rock. Creek. 

It seems that surveyors and woodmen acquainted with old 
marks have a way of distinguishing the similarity of marks 
and the instrument with which they are made, and the tes- 
timony shows that the State line marks were made with a 
small axe; and the testimony shows further that the so-called 
State line marks on Hangover Ridge were not made with the 
same kind of an instrument. And Hayes, at pages 796 and 
802, and Bogle at 814 and Hyde at 826 and 827 and 838, 
and Carver at 851 of the record, testify that the sourwood 
tree was marked wiith miscellaneous marks that were not 
made in the same manner, nor with the same instrument 
that the State line marks along the undisputed portion of the 
line were made, but that they were made with the same 
kind of an instrument that Piercey, a former county sur- 
veyor of Cherokee County, used. This testimony comes from 


140 


a familiarity with the character of the marks made along 
undisputed portions of the line. | 

Burns and Gannet in their survey, Exhibit ‘“‘D,” have in- 
cluded a long list of State line trees, comprehending the 
trees along the whole survey from the 59th mile tree to the 
101tst mile tree, consisting of 124 different trees (see list on 
complainant’s Exhibit ““D” facing page 336 of the record), 
each one of which has been from time to time inspected and 
verified. 

The witness for the complainant, H. P. Hyde (record, 
825), enters into a good deal of detail in regard to the 
marked trees, especially with regard to, the sourwood tree 
and the black oak tree, claimed to be State line trees by Hale, 
and in this describes exactly what marks are on those trees 
and why they cannot be considered to be State line marks; 
and on page 829 says that he found all of the trees mentioned 
by Hale, but found no State line marks on them. That there 
was plenty of good timber there that would have taken marks 
but they were not there. 

The witness Burns, on page 231 of the record, describes 
the State line marks, both fore and aft and side line, and on 
the next page tells of the significance of these marks. 

There is also an important bit of testimony in this wit- 
ness’s testimony in relation to a tree that has been desig- 
nated now as No. 30, said to have been found by Mr. Gan- 
net. The witness Hale says that this tree bore undoubted 
State line marks, but that they were not old enough. This 
tree is about a quarter of a mile from tree 29, on the north- 
east bank of the Tennessee River toward the Slick Rock 
Creek. Hale blocked one side of the tree and brought the 
block in containing the blaze, but the part containing the 
hacks was left upon the ground in chips. On page 342 
Burns goes into the details of this tree and states that they 
were not only State hne marks, he having blocked the other 
side of the tree, but that they were eighty-nine years old, and 
the block that he took out was on the side up the river; it 
was a chestnut oak, 20 or 24 inches in diameter. 

On page 366 he states that on his last trip he walked down 
the Tennessee River, passed tree 29 and continued on down 


141. 


to tree No. 30. That at that time he did not follow the 
stream any further than tree 30, but on that trip he found 
about 150 feet further up the river from tree 30 a hemlock 
tree marked as a State line tree, very old marks, which he 
believed to be the original State line marks. 

On page 367, on redirect examination, he states that there 
were two trees marked with State line marks between tree 
29 and the mouth of Slick Rock Creek. ‘That tree 30 is 
about 1,475 feet from tree 29. That he found the tree had 
been blocked on the east side, and he blocked it on the west- 
ern side, and the block is in evidence in this case, labeled No. 
11. He states that Mr. Gannet found this tree. 

At various points in his testimony, particularly at pages 
367, 368 and 369 of the record, he designates the trees that 
he found and states that Mr. Gannet had found some others 
which had been added to the lst. 

Myr. Gannet, on page 417, goes into considerable detail 
also of his survey from the 101st mile northwestwardly, and 
states the number of trees that were found and. were located 
between particular points. On page 417 he states that they 
found forty-seven trees, State line trees, between the junction 
and the Tennessee River on the Slick Rock Creek line, and 
he states that these trees that they found were marked exactly 
like the trees that they discovered on the undisputed por- 
tions of the line (record, 419). On page 427 he gives a list 
of the trees that he personally had observed, and states that 
he discovered tree No. 30, which has been already mentioned 
and testified about. On page 439 he testifies concerning 
tree No. 30, and states that it is a chestnut oak about thirty 
inches in diameter, and that it had two hacks and a blaze on 
the west side and the same on the east side; and both Burns 
and Gannet testified that those marks on the block that thev 
brought in were of the right age to have been made by the 
Commissioners. 

With regard to this tree 30, Hale, while admitting that 
the marks were State line marks if they were old enough, 
denies that the marks on the block taken out by Burns (ree- 
ord, 1,152), are of sufficient age, but he qualifies it in this 
way: He says, “I have examined this block and I find very 


142 


clearly defined in the wood 88 or 89 years old, four distinct 
hacks, but no blaze for that age. I do find a blaze in that 
wood about 57 or 58 years old, at the proper depth of that 
age, but none at the depth of 88 years.” And afterwards 
on the same page he states that the blaze is 59 years old, but 
the hacks 88. 

No witness in the case knows of any grant as old as 1821, 
and on 1,153 Hale states that it is sometimes very difficult 
to tell the age of marks. On page 1,149 is where the wit- 
ness Hale states that he only cut out the blaze and destroyed 
the Hacks, leaving a part of the block on the ground. The 
hacks and blaze, which are clearly like State line marks, 
Hale testifies date back to about 1853. 

John L. Williams, who has stated as heretofore mentioned, 
that he was never satisfied there were any State line trees on 
the Hangover Ridge, testifies at page 1,441 of the record, 
with reference to this tree 30. He corroborates the testi- 
mony of Hale as to blocking that tree, and states on 1,442 
that those marks that they blocked were about 58 years old, 
but they only blocked out, or brought in, the blaze. That 
the hacks were cut out but left in pieces on the ground, and 
this blaze was divided into three parts, one of which Hale 
kept; the second piece was kept by Williams, the witness; 
and the third by Mr. McNab, and these were brought in to 
be fitted together and are blocks Exhibit 1 to Williams’ depo- 
sition. But, when they tried to fit them, they would not ex- 
actly fit. 

On page 1448 he corroborates Hale, that while the hacks 
on Burns’ block of that tree are 88 or 89 years old, he claims 
there is no blaze there, and gives his reasons. 

Inasmuch as these marks are in appearance unquestion- 
ably State line marks, yet they are denied to be State line 
marks because of the requisite age, and yet there is a mark 
on the Burns block 88 or 89 years of age, that apparently 
may be, or may not be a blaze. Burns and Gannet say it 
is; Hale and Williams say it is not. But, as far back as 
1821 there is no evidence that anybody was marking’ trees 
in that locality except the Commissioners, and it would seem 


143 


that the marks must have been a state line mark and that the 
later marks must have been a remarking. 

The witness Williams himself says that there were evi- 
dences northeast of the river of a remarking of the line at 
some points in about 1855. The State lne was different 
from corner marks, and yet these are unquestionably in ap- 
pearance State line marks. There is no evidence, nor would 
there be any reason to suppose that people right on or near 
the State line itself were imitating State line marks. 

The witness McNab, who was a witness for the defendant, 
on pages 1,526 and 1,527 describes the block that Hale took 
out, also Burns’ block, and at the bottom of page 1,527 to 
the top of 1,528, says that there are four hacks on it, nothing 
to indicate a blaze, only a dead spot at one of the hacks. He 
says if the hacks were not there, it might be taken for a blaze, 
but he thinks it was not intended for a blaze. 

Messrs. Burns and Gannet were both experienced wit- 
nesses, which means a little more than that on looking at a 
tree they can tell what kind of tree it is, as, for instance 
in this case, it betokens an acquaintance with land marks 
and the method of making them; what they indicate, the in- 
strument with which they were made, and their probable age. 

According to the testimony of the witnesses for the defend- 
ant, it might be argued that they think that neither line was 
marked, for they certainly have shown no State line marks 
on Hangover Ridge, and attempt to discredit the marks on 
the other line contended for by the complainant. 

The testimony with reference to tree No. 30 is of some 
considerable importance, not so much to the plaintiff as to 
the defendant, because the plaintiff’s witnesses in their tes- 
timony inevitably point to the fact that the commissioners 
were going down the river towards Slick Rock Creek. If 
tree 30 was an isolated tree, and there was no corroborative 
evidence in the case; in other words, if it seemed strange and 
unnatural that that tree could be a State line tree, then there 
might. be some reason to weigh carefully the contradictory 
testimony of the various witnesses. It seems to us that the 
character of that tree is to be determined on larger lines than 


144 


the mere weighing of contradictory statements as to the char- 
acter and probable age of the marks. 

When we consider that the marks themselves are evidently - 
State line marks, or imitations of them, and that the marks 
whatever they are, on Burns’ block No. 11 taken from that 
tree, in evidence, were certainly made about 1821, and that 
there were no entries, much less grants, in either State in 
that territory so early as that, and no probability that any- 
body would designedly imitate the State line marks, or would 
be making any marks whatever without any evident purpose; 
and further, when we consider that that tree is in the line 
that is indicated by the map of 1821 and the commissioner’s 
report, fixing 65 miles as the point at which they passed the 
Tennessee River, and is entirely in accordance with the field 
notes of Davenport, and is in the line of the other marked 
trees, both north and south of the river, the eonclusion be- 
comes almost if not quite irresistible that that is a State line 
tree and is in the line followed by the commissioners. | 

W. P. Chambers, a surveyor of Bradley County, Tennes- 
see, one of the complainant’s witnesses, whose testimony be- 
gins at record 551, after describing what. he did in the way 
of surveying the line, says on page 554 that he found tree 
29, and on 555 that he found the chestnut oak tree 30, 
marked on the northeast side, and a little further along on 
that line towards the creek found a maple marked with three 
hacks on the north side, and just below Slick Rock Creek, 
found a black gum marked with three hacks. That all of 
these were old marks and had the same general appearance 
and seemed to have been marked with the same instrument, 
at the same time. 

That the next day he crossed the river and resumed work 
and found marks up the creck, along the spur and Big Fod- 
der Stack, which also were the same kind of marks as he 
found on the north side of the river, made by the same 
instrument and in the same manner, and at the same time, 
-and that any man could satisfy himself that the line ran up 
that way. 

On page 560 he says that the trees marked on the north 
side of the river between tree 29 and the creek ran in a 


- 145 


westerly course; that the maple and chestnut were marked 
going down the river and that the gum was marked on the 
opposite side. On page 560 he describes how surveyors mark 
trees, and what these marks indicate, and states on 561 that 
the marks on the gum indicated that the marker crossed the 
river and went up the creek. 

He then states that the Ocoee map shows that the line runs 
up the creek, and on page 562 that no grants in Monroe 
County, Tennessee, call for a crossing of that creek. 

Francis Lovingood, record 565, speaks generally of the 
marks up the creek, 

C. L. Slagel, a surveyor and witness for the complainant, 
whose testimony begins record 753, states in the first place 
that with the notes they found some of the trees indicated at 
the ends of the miles with old marks on them as old as 1821, 
and speaks principally of the birch at the end of the 67th 
mile, the sycamore at the end of the 68th, the birch at the 
70th mile; all with old marks on them as old as 1821, and 
‘likewise with reference to the poplar at the 72d mile. 

That he examined the Hangover with care and found no 
marked trees (State line trees), on it. 

H. S. Hayes, for the complainant, a surveyor, whose testi- 
mony commences at 794 of the record, and consists of the 
testimony taken in the Hebard v. Batins g case, once by 
stipulation in this case. 

He states that in the territory which was in dispute at 
that time, consisted only of the Slick Rock Creek dispute; 
that on the Slick Rock Creek line they found 41 trees that 
are taken notice of in the decision of the United States Cir- 
cuit Court of Appeals in the case of Hebard v. Belding, 103 
Federal Reporter, 541. He further says that the marks on 
Hangover were not made with the same kind of axe that the 
marks on the 41 trees were. That the marks on Hangover 
were made with an axe such as Piercey, an old surveyor of 
Cherokee County, used. That there were no marks on the 
Hangover Ridge earlier than 1852. That his tree No. 1 was 
about one pole west of the creek. 

J. ©. M. Bogle, one of complainant’s witnesses (record, 

2780--10 


146 


812), says that the black oak about three quarters of -a mile 
from the river (record, 814), which Hale has described as 
on the spur leading to the mouth of Slick Rock Creek, did 
not have marks that were old enough, and that the sourwood 
had no State line marks on it at all; that they were irregular 
and were made with a broader axe and were not over thirty 
or forty years of age. 

On page 815 he goes on with an enumeration of the trees 
that Hale had mentioned, and corroborates the witness Hayes 
on that subject. And on 824 he makes a diagram of the 
marks on the sourwood tree. 

This is one of the witnesses who states that the main ridge 
called for does not begin until you get to the junction. 

H. P. Hyde, a surveyor, whose testimony begins on record 
825, states that he found Hale’s red or black oak, three quar- 
ae of a mile from the river, describes the marks and states 
why they are not State line marks. That there was an “x” 
on it, which is quite a common mark in North Carolina for 
a beginning corner to a tract. 

On 827 he describes the marks on the sourwood tree and 
explains why they are not State line marks, and on 828 goes 
on with the various trees discovered by Hale, and speaks of 
the hickory which Hale enumerates as not containing any 
State line marks, but it does contain marks showing it to be 
in the line of entry 920 of North Carolina. On 829 he says 
that he found all of Hale’s trees and that there were no State 
line marks on any of them except possibly one, and that those 
marks were not old enough, although there was plenty. of 
large timber on Hangover Lead. 

On 835 he speaks of having made another examination, 
and confirms his former opinion. On 836 he again takes up 
the question of the black oak and describes the marks, and 
states that there are no axe marks on it at all, and continues 
as to that and the other Hale trees on 837 and 838, and on 
the latter page says that the marks on the black oak were 
made with a smaller axe than the State line marks were 
made with. On 8438 he says that tree 29 is marked fore and 
aft for Slick Rock Creek. 


147 


This witness is also of the opinion that the main ridge 
does not commence at all until you reach the junction. 

Reuben Carver, a surveyor (record, 850), was with Hayes 
and Bogle in making their survey and he examined Hang- 
over Ridge twice carefully. 

On 855 he says that the marks on the Shek Rock Creek 
line correspond with the marks on the spruce pine or hem- 
lock tree 29, and have the appearance of having been made 
with the same axe, cut in the same way, and with the same 
size axe. This witness takes up the block exhibited by Hale 
from the black oak tree and other exhibits of Mr. Hale, ex- 
tending over on to page 867, and corroborates the other wit- 
nesses for the complainant in respect to the testimony that 
those trees were not State line trees. And again on pages 
860 and 861 he gives evidence of the same character. 

We, therefore submit, most confidently, that all this testi- 
mony, with overwhelming force establishes the facts: that 
the Commissioners were never on Hangover Lead; that they 
never considered it in running the line; that it was never 
run as a portion of that line; that it was never marked as 
that line; that it is utterly irreconcilable with the map of 
1821, with the Davenport field notes, and the other parts of 
the undisputed line in the neighboring localities; that the 
Hangover line is purely an invention of Hale and the land 
speculators in 1892, the first time that claim was ever made, 
and the beginning of all the subsequent confusion and trouble. 

The defendant’s witness Hale makes a very strenuous 
effort to belittle the evidences of where the Commissioners 
in fact located the line, and that is the only question at issue. 
But even if he were successful in shaking any one of the 
classes of testimony introduced, taken together and pointing 
to but one result, and with an entire absence of any evidence 
in favor of the Hangover Ridge, except as to the opinion of 
Mr. Hale and his associates as to which was the main ridge 
and where the Commissioners ought to have gone, it would 
seem that the conclusion is almost, if not quite, irresistible 
that the Slick Rock Creek line is the one that the Commis- 
sioners actually located, marked and adopted. 


148 


THE SURVEYS. 


The two principal witnesses for the complainant are D. B. 
Burns and 8. S. Gannet. To take these up in their order, 
Burns (commencing record, 226), states in the first place his 
education as an engineer and surveyor, and next his experi- 
ence, and on page 227 states his experience in retracing old 
lines that have been found marked, and that involved a com- 
parison of other statements with the actual work on the 
eround, and that ever since he was sixteen years old he had 
been in the habit of going out into the mountains with his 
father, who is a lumberman, and that-he is familiar with land 
surveying and with old land marks. 

On 228 he states that he commenced his survey in April, 
1908, and used a transit, and on the next page, in answering 
the question as to whether he discovered land marks and 
marked trees along the line which he surveyed, he answers 
that he did, and explains what those marks were; that they 
were State line marks, and states that a person who had 
been in the habit of tracing up old lne marks ean tell 
whether they are State line marks or not from the appear- 
ance of the marks, and adds that if the axe mark did not 
pass entirely through the bark, that the only way to tell the 
age of the marks would be their appearance. 

He commenced his survey from a point about 3 1-2 miles 
north of the Tennessee River and surveyed from that point 
to the Unicoy Turnpike to the 101st mile post, a distance of 
forty-two or forty-three miles. When he began the survey 
on the Smoky Mountain he took an observation on the North 
Star in order to determine the true meridian north and 
south. That he surveyed about six miles and took another 
observation on the North Star, and checked his work by 
the various angles from the first observation, and then con- 
tinued the survey to the junction of the Hangover Ridge 
and Big Fodder Stack Ridge and took another observation at 
that point and found that all his calculations checked with 
each other. That he checked his work from the State Road 
on the Smoky Mountain to the junction in three different 
places and was perfectly satisfied that his work was correct. 


149 


On page 230 he states that about a year afterwards he 
surveyed another line, an accurate transit line, from the 
junction over Stratton Bald, down the main ridge to the 
Cheoah River, and down Cheoah River to Slick Rock Creek 
and tied on to the line he had run the preceding year, and 
found in the entire circuit practically no error at all. 

That this last survey covered a distance of twenty-five 
miles and that the only error in that circuit was about fifteen 
feet, and that this was an absolute check on the aceuracy of 
his prior work. That he ran a base line down the Cheoah 
River and likewise the Tennessee and other streams. That 
he surveyed Slick Rock Creek and Cheoah River. That his 
plat shows a system of co-ordinates; that those lines or 
squares as they appear on the tracing are drawn out at the 
distance north and south and east and west by the true me- 
ridian, and represent the true north and south and the true 
east and west. That these lines are a distance of five thou- 
sand feet apart and represent what would be known to any 
engineer as the co-ordinate system of platting lines. He 
then explains that what he means by that is that every point 
on that map has a distance which is figured from the axis 
whose crossing is the origin of that system, that is a given 
number of feet from the east and west axis, or a given num- 
ber of feet from the north and south axis, the distance being 
due west or due east, or due north or due south from the 
point called zero or origin; and that this system of squares 
insures accuracy of platting and it is impossible to make an 
error that you cannot detect. 

He then explains the system of tree marks that was used by 
the Commissioners, and on page 232 their significance. In 
making this survey he had with him the plat, or map of 
1821. He then goes on to state about the first tree or two 
that he blocked and introduced in evidence as block No. 1, 
taken from tree No. 13, a white oak, and states that this 
block No. 1 shows that the tree had apparently been remarked 
and that it showed both the old and the new marks, and this 
block is offered in evidence. | : 

On page 234 he explains that when he got to the river that 
he took the map of 1821 and went to a point on the north side 


150 


of the river opposite the mouth of Slick Rock Creek at an ele- 
vation of four or five hundred feet, from which position he 
had a splendid view of the whole Slick Rock Creek basin. 
and all of the principal peaks, the Big Fodder Stack, Little 
Fodder Stack, Hangover, and the whole Slick Rock Basin. 

That he noticed from the original map a distance of six or 
seven miles south of the river a practically straight course 
and then a decided break to the left. That he took his in- 
strument opposite the mouth of the creek and set 1t up upon 
the same bearing taken from the original map, and found 
that the bearing took him right over Big Fodder Stack. He 
had been led to believe from information before he got to the 
ground that the line went over the Little Fodder Stack, and 
he expected to find the line there; but, after using the com- 
pass in that test, he found that it went over Big Fodder 
Stack, and he then abandoned the idea that the line could 
have gone in any other direction than up Shick Rock Creek 
and over Big Fodder Stack. 

He then began his investigation for marked trees. He 
drew a line from the mouth of the stream marked ‘‘creek” to 
that first decided angle to the left, and after ascertaining that 
bearing, set his compass on that bearing and found that it 
carried him over Big Fodder Stack, and that that gave him 
the idea that the line ran up Slick Rock Creek. That the 
line on the north of the river trends southwest in its undis- 
puted part, and as you go down on that course you can see 
right in front of you the Big Fodder Stack. He then speaks 
of finding tree 29 and states that the marks that they found 
on the line north of the river corresponded in general ap- 
pearance and in appearance as to age. That he went up the 
Shick Rock Creek 4.9 miles, finding a number of marked 
trees. In the first two miles they were plentiful. 

He continued the survey up the Slick Rock Basin to Big 
Fodder Stack Lead, finding also a number of trees, one of 
them a fore and aft tree, and then introduced in evidence 
block No. 4 from tree 41. He found marked trees on the 
Big Fodder Stack Ridge, the Big Fodder Stack, and from 
Big Fodder Stack up the Junction, and in that space found 
twenty-six trees—undoubtedly State line trees. He then con- 


151 


tinued the survey from the Junction to Laurel Top and 
found quite a number of State line trees between the Junc- 
tion and Laurel Top. [rom the Junction to Laurel Top the 
line is undisputed. The survey was then continued from 
Laurel Top to Jenks Knob, but he found no trees between 
Laurel Top and County Corners. From County Corners 
he surveyed southwest down the State Ridge and found along 
the State Ridge to Tellico many State line trees, and among 
others just across the Tellico River found tree 107, which 
has been designated as the 86th mile tree, which on page 241 
he says was marked on the right hand as you go to Jenks 
Knob. This holly tree, the 86th mile tree, stands about a 
thousand feet from the Tellico River, and between County 
Corners and Jenks Knob there are eighteen State line trees. 

On 242 he says that the State Ridge talhes with the map 
of 1821. On the same page he says that he went, after com- 
pleting the survey to Jenks Knob, with Mr. Gannet to the 
101 mile post, where the Unicoy Road crosses the State line, 
and from that point they ran a joint survey of the line to 
Jenks Knob and tied to the line that he had previously run 
in March. 

That the most of that ridge is barren and has been cleared 
of timber, though they found seven or eight trees along there 
that were State line trees, and that he also found one fore 
and aft tree on the line south to the Georgia line and _ pro- 
duces the block No. 10 from tree 21, which counts and dem- 
onstrates that it was a State line tree. 

On 243 he then speaks again of the survey that he made 
from the Junction back over Hangover and states that he 
found no State line trees on the Hangover line. He de- 
scribes the ridges to Cheoah and to Slick Rock Creek. On 
the north of the river he began his survey at the Smoky 
Mountain Road, while Mr. Gannet surveyed from there back 
toward the Gregory Bald and stopped at the 59th mile tree, 
and states that from there (record, 246), the exact measure- 
ment is 6.02 miles to the south side of the Tennessee River 
at the mouth of Slick Rock Creek, so that their 65th mile 
falls in the Tennessee River, while the distance from the 59th 
mile tree to the south side of the Tennessee River as claimed 


152 


by the State of Tennessee is 5.47 miles, and from there to the 
Junction by the Slick Rock Creek from its mouth is 10 miles 
and 16 miles to the Junction from the 59th mile tree, while 
it is only 14 by the Tennessee contention. 

On page 247 he gives the bearings according to his survey 
and as compared with the map of 1821. This survey was 
carefully made and checked over, and as we shall see, Gan- 
net, when he comes to testify, states that in his testing of 
Burns’ work, he found it the most accurate that he had ever 
seen in that kind of rough mountain surveying. ‘The out- 
come of this survey of Burns’ is exemplified by the various 
maps which will be hereafter sted with the pages of the 
record where they may be found. 

S. S. Gannet, another witness for the complainant, whose 
testimony begins at 408, is an employee of the United States 
Government in its Geological Surveying Department, with 
the title of Geographer. On 409 he gives his technical ac- | 
quirements and then goes on to detail his practical experi- 
ence in such work, and on page 409 states that from the year 
1882 to 1886 he did work in the western part of North Caro- 
lina, and further has knowledge of trees and marks upon 
them, or that bear upon the question of surveyed lines and 
the indications of those marks. 

At the top of page 410 he states his further experience in 
this particular kind of work, as follows: 

“In 1897 I was detailed to the Indian Bureau of the Inte- 
rior Department to locate the intersection of the 107th meri- 
dian with the Colorado-New Mexico boundary line by means 
of the marked line; and again in 1898 I was detailed to assist 
in the work of locating the boundary line between Montana 
and Idaho, starting where a certain meridian crosses the 
Bitter Root Mountain, and established that by astronomical 
observations. In 1908 I was engaged throughout the season | 
in remarking and retracing the boundary line between Ida- 
ho and Washington for a distance of about 120 miles,” and 
further : 

“On May 31, 1910, I was appointed by the Supreme Court 
of the United States as one of three commissioners to mark 
the boundary lines between Maryland and West Virginia. 


The case was decided in May by the Supreme Court, and I 
was appointed as mediator representing the United States.” 
On page 411, he was asked how he happened to be con- 
nected with this matter. He says the Attorney-General of 
North Carolina requested the Geological Survey to investi- 
gate that question and to find out if possible where the orig- 
inal line was run and marked; and “I was selected by the 
director of the geological survey to engineer the work.” 

In reference to the directions:as to what he should do, he 
says: “I was to actually go on the ground and find out from 
my knowledge of the country and experience in such matters 
where the original line was actually run and marked.” And 
further, “It was my duty to find out the truth about where 
the line was run, regardless of whom it affected.” 

In detailing his action upon the ground he says he first 
went to Murphy, North Carolina, and started from that place 
and went first to the 101st mile post, where the turnpike 
crosses the Unicoy Mountain and that he then ran a line 
southward. On that part of the survey he was accompanied 
by D. B. Burns and some other men. A Mr. Hugh Sadler 
of Tennessee showed him where the 101st mile post was, and 
accompanied him down the line. 

He made an investigation in the vicinity of the 101st mile 
post to determine whether the position designated was the 
correct one, which resulted in his conclusion that it was cor- 
rect. He participated in taking a block from the tree about 
500 feet south of the first mile. He was acquainted with 
the State line marks. From the 101st mile tree he ran a 
line northeast, which he was able to identify by the marked 
trees and the plat Exhibit “D,”’ a copy of which is intro- 
duced into this case so signed by him in connection with 
Burns. 

This witness had with him the 1821 map, and on the way 
from the 101st mile tree to Jenks Knob he found 12 State 
line trees. He then surveyed down Jenks Ridge and up the 
State Ridge and found State line trees. Between Jenks Knob 
and County Corners 20 State line trees. From Jenks Knob 
to County Corners he made his own survey entirely indepen- 
dent of Mr. Burns and this survey was made with the same 


154. 


instrument that he used in surveying the line between Idaho 
and Washington and employed exactly the same methods 
which were approved by the United States Government, and. 
they proved that Mr. Burns’ survey was correct. That in 
making this survey he used a different method from Mr. 
Burns so as to check his work, but the results tallied. 

He states with reference to the Tellico Country that if you 
follow the course of the plat of 1821, you have to cross the 
Tellico River, and that he learned from personal examina- 
tion that the angles on the plat and the marked line agree. 
That for an undisputed portion of the line to the Junction he 
did not retrace the line, as he had been over that part of the 
work in 1883 and 1884 and had been on Haw Knob and 
other high points on that ridge. He then went to the June- 
tion where he was joined again by Burns. 

That from the Junction to the Stratton Bald and along 
Hangover he found no marks, and continued his investigation 
of that ridge to the Tennessee River, looking very carefully 
for State line trees, but found none. That the sourwood 
was the only one that by any stretch of the imagination could 
be called a State line tree. That it was impossible to tell its 
age and he would say that the marks on it were placed there 
promiscuously, and without any regularity. There was one 
place which appeared to be a blaze and a hack, and another 
two hacks above a blaze, and another three hacks above a 
blaze, but the hacks were not old enough. 

He then went from the Junction along Fodder Stack and 
down Fodder Stack Lead to the forks of Slick Rock Creek 
and then to the mouth of Slick Rock Creek, and between 
there and the mouth of the creek found a number of trees 
well marked, which gave every appearance of being State line 
trees. That he went out on to the Little Fodder Stack but 
found no indications of the State line there. On the top of 
the ridge leading from Big Fodder Stack to the forks of 
Slick Rock Creek he found a hemlock tree which had old 
State line marks on it, but further down the ridge there 
were no suitable trees for being marked, or if there had been, 
they had been destroyed by fire. Just above the mouth of 
Shek Reek Creek he found several well marked trees, some 


155 


of which had been formerly blocked by other surveyors, and 
there were eight trees above the forks of Shick Rock Creek 
that he could identify. That from the forks of Slick Rock 
to the mouth is little less than five miles. 

After finishing the examination up there, he went along 
the creek down to its mouth and found several trees near the 
mouth of the creek. All of these trees that he speaks of, he 
says (record, 417) were marked like other undisputed State 
line trees, and marked with the same instrument. He found 
26 trees between the Junction and Big Fodder Stack, 10 
from there to the forks of Slick Rock Creek, and 11 from 
there to the mouth of Slick Rock Creek ; 47 trees in all, which 
in his opinion were all State line trees. That his survey car- 
ried him from the Slick Rock Creek line, and the marked 
line carries you the same way. To start with, he says the 
timber on Hangover Ridge is scrubby, but below the Hang- 
over Peak the timber is good, and would have been suitable 
for marking in 1821. That the timber was good at the Sour- 
wood Gap and he found a number of trees along there that 
would have been suitable for retaining the marks. That he 
examined all these trees with care but found no marks that 
indicated that they were State line trees. That there were 
one or two that had been marked promiscuously. 

This witness then, after getting to the mouth of Slick Rock 
Creek, crossed the river and followed the line along the 
Smoky Mountain north of the river to the 59th mile post, 
and from the crossing of the road, or the commencement of 
Mr. Burns’ survey, to the 59th mile post, he surveyed per- 
sonally and Burns was not along. It is on page 418 that he 
said, speaking of Burns’ notes: “His notes, as well as the 
body of the plat which he made, and the plat of 1821, and 
my notes were compared right along.” And it is here where 
he says, “I would say that I found his work certainly the 
most accurate work I ever had dealings with, especially 
considering the fact that it was in such a rough country. I 
have never known work to be so accurate in such a rough 
country.” 

Going back again from the 59th mile tree, he says they 
followed the undisputed line’ southwestwardly, finding 


156 


marked trees exactly like those he found below, and that 
sighting along from the northeast side of the river in the 
direction of the Tennessee River by the course of the line, | 
the Big Fodder Stack is a prominent peak in the line, and: 
it would be natural for surveyors following the main ridge 
to take the Big Fodder Stack as an object to which they would 
go on the other side, and that surveyors would naturally 
select the Fodder Stack. And from the northeast side of the 
river it appears that the Slick Rock Creek and Big Fodder 
Stack lead directly to the summit on the other side, and that 
this line coincided very closely with the plat of 1821, the 
other route being entirely too far to the left or east. 

They found tree 29 and observed that just across there is 
a very steep bank, almost inacessible, 800 feet high, and 
spread out up and down the river three quarters of a mile, 
which made it not a practicable route because it was too steep, 
and it was practically impossible to survey a line up and down 
that bluff. He then speaks of tree No. 30 and states that it 
was evidently a State line tree. This was on the way down 
to a point. opposite Slick Rock Creek going from tree 29. 

He then says that the Fodder Stack Ridge averages higher 
than the Hangover; that the latter is more broken and there 
are more deep gaps in it. On page 423 that the Fodder 
Stack is the leading ridge on the south side of the river, and 
has a greater average altitude and continuity. Hangover is 
much more broken. 

On 427 he says that the Burns and Gannet map corre- 
sponds exactly with the data obtained upon the ground and 
that the marked trees were all on the North Carolina conten- 
tion and none on the Tennessee contention, and states further 
that he found tree No. 30 and that it is a State line tree. 

He then goes on to give a lot of details as to the distances 
and states on 429 that the stream marked creek on the 1821 
map could only be Shick Rock Creek ; that the Cheoah River is 
more than a mile and a half to the east and could not possi- 
bly be the stream marked ‘‘creek.” He gives the difference 
in the angles. 

There are a number of other surveys that have been made 
by surveyors who have testified for the complainant, some of 


157 


which were made for use in the Hebard case, and other new 
surveys, but these two surveyors went more caretully and 
more accurately over the ground and in their testimony and 
in the maps filed are much more minute and definite in their 
conclusions, and it will only be necessary we think to allude 
to the fact: that these surveys by Collett (record, 547), 
Chambers (551), Crisp (562), Lovingood (565), Slagel 
7538), Hayes (794), Bogle (812), Hyde (825 and 833), 
Carver (850 and 854), all found the hne to be on Slick Rock 
Creek and as claimed by the State of North Carolina. 

Of the surveys made by Burns and Gannet, we may say 
that these gentlemen went there to ascertain where the com- 
missioners actually located the line. In following down the 
line on the north side of the river, certainly as far as the 64th 
mile tree, there was no ground for an error, and from that 
point there could have been nothing more natural, having the 
map of 1821 before them showing the shape of the line, than 
to go to Slick Rock Creek. Locking over on to the south- 
west side of the river, it was impossible to conceive that a 
line of that shape could go over the Hangover Ridge, and it 
was impossible to conceive that the stream marked ‘‘creek” 
to the right meant the Cheoah River a mile and half away to 
the left, and that following the Cheoah River tor any distance 
could ever tend to land the surveyor at the Junction, where 
again the line became undisputed. 

The shape of the lines indicated the path, if you take noth- 
ing else. <A curve to the right going to the mouth of Shck 
Rock Creek, or any other point to the right, and at seven 
miles, taking a turn to the left and reaching the Junction, 
could never fit a curve starting opposite tree 29 and turning 
to the right at entirely different angles. 

Hangover Ridge having been described by these witnesses 
as not the main ridge at all, and that the ridge to the Cheoah 
River is the main ridge of that ridge, and the description 
of the Hangover Ridge for several niles south of the river as 
being only a gradual ascent broken by deep gaps at many 
points, certainly would justify the selection of the Fodder 
Stack Range as the outlet to the Slick Roek Creek and as the 
easiest way to get to it. The shape of the line itself points 


158 


inevitably to that conclusion. And, when these surveyors on 
further investigation discovered that the line up this stream 
marked “‘creek” along to the Junction and from there down 
to the 101 mile tree is well marked and refer to the fact that 
the Commissioners stated that they had marked the line, and 
furthermore, after careful examination finding no State line 
marks on the Hangover Ridge, and in this latter regard it is 
more than likely that they are entirely correct, because Wil- 
hams, defendant’s witness, said that he never saw any trees 
on that ridge that satisfied him that they were State line trees, 
how could these surveyors come to any other conclusion 4 

So far as the surveys of Hale, Wilson, Muller, and Wil- 
liams are concerned, we have already stated that in our opin- 
ion all of these surveys were dominated by Hale and adopted 
his views. 

We treat Kent, one of defendant’s witnesses, as a negli- 
gible quantity. This man’s testimony is found commencing 
in the record at page 1,489. Crisp, one of our witnesses, 
was with Kent, who was employed by the Babeock Lumber 
Company. 

Crisp says that they went on to the north side of the river; 
that they had no instruments along with them, and that Kent 
took a straight stick and sighted backwards on the undisputed 
_line and then turned and sighted in the same general direc- 
tion across the river, and that his line of sight across the 
river struck the Big Fodder Stack. That thereupon they 
went across the river and investigated the Slick Rock Creek 
contention, and as a result of it, Kent said that the line must 
have run along the Slick Rock Creek and that he would so 
report. He is brought in to testify and denies that he said 
he would report that, and in fact adds his testimony to the 
other witnesses for the defendant that the line must have been 
run along Hangover Ridge, because, for the unique reasons 
that he could not see why it should go anywhere else and 
because his line of sight to the south struck Big Fodder 
Stack. That that is an additional reason that he thinks the 
commissioners. chose Hangover Ridge. 

He admits that he did use a stick in making sights, but 
just what degree of straightness that stick had, and how near 


159 


in turning around he got on to the line of sight, and how 
steadily he held the stick, we have no means ot knowing. 

At page 1,495 he says that he was mainly looking for a 
main ridge and that Hangover appeared to be higher and 
bigger to him than any other, and that he could not get into 
his mind that Fodder Stack was the main ridge; but on page 
1,497 he admits that he did find a tree, which was apparently 
a State line tree, with three hacks on it, eighty-seven years 
old. On 1,499 he says the most reasonable and probable 
route seemed to be to cross over at tree 29 and go over the 
Hangover to the Junction. On 1,501 he says that Hale’s 
and burns’ maps both seemed to be right in direction trom 
Knob to Knob and in measurement. 
~ On page 1,505 he admits that he first thought that the 
Little Fodder Stack Ridge might be the main ridge. On 
1,507 he states that the Cheoah River Ridge is the main one 
for a mile or two, but the peculiarity of this gentleman’s tes- 
timony is on page 1,510. He was asked if he made a report 
of his conclusion to Mr. Shields, who was the attorney for 
the Babcock Lumber Company. He was asked this question. 

Q. Did you report to him that it went over Hangover ? 
A. I reported to him what I found. 

Q. Did you give any information as to where the State line 
ran south of the river? <A. I reported my findings. 

Q. Did you report that it went over Hangover? A. I 
think I told him I thought so. 

Q@. Do you remember what you reported? A. Not abso- 
lutely. 

Now here was a matter that this witness knew was the 
subject of great discussion and litigation, and of interest to 
two sovereign States. This testimony of his was taken on 
January 7, 1911, and he had made his investigation about 
the middle of June 1910 (record, 1,491), or thereafter, and 
he had made a written report, and yet did not remember and 
could not tell whether he reported in favor of the Hangover 
location or not. But, after answering the questions as already 
indicated, on further pursuit, he says: “I reported my opin- 


ion.” And, in answer to question 175, page 1,510, he says 


160 


he must have reported the Hangover line, because that is 
what he found. 

The testimony of W. D. Hale, the defendant’s principal 
witness, is justly subject to criticism. The man is not a very 
safe guide who stood on the Smoky Mountain on the north of 
the Tennessee River and surveying with his eye the topogra- 
phy of the country across the river, and with his eye picked 
out the locality of the State line, regardless of his own survey, 
ani makes everything bend to his own eaprice, disregarding 
all courses and distances of the map of 1821 and the shape of 
the line, which is evidently not over the Hangover Ridge, 
and all marks; and who still in the face of all the evidence to 
the contrary adheres stubbornly to that first impression, not 


only at the Slick Rock Creek locality, but in the Tellico 
River country, where not only the shape of the line and the 
absence of all marks, but the great overplus of distance 
around, and the fact that you miss the 86th mile tree, an 
undisputed point, by a mile and a half, all concur in exclud- 
ing any line as contended for by the defendant, and then at- 
tempts to disprove the Davenport notes by ignoring every 
natural object and every mark and every indication of the 
1821 map, and in a way not customary with surveyors in 
using old maps and notes, and in a way manifestly unfair 
according to the testimony of John L. Williams, his com- 
panion in that work (record, 1,590). He surely can be 
justly charged with having warped his judgment by a strong 
bias arising from his first impression, which he is unwilling 
to allow to be affected by reasons too strong to be disregarded. 

Nothing can be clearer than that Hale picked out ridges 
only. That those ridges were selected by him, not with ref- 
erence to where the line actually was located, but where it 
ought to have been located, and he locates it there and noth- 
ing can convince him to the contrary, and his refuge, when 
every other consideration points to some other locality, is in 
his assertion that the commissioners went along and marked 
that other line, but that they abandoned it. 

We hope we do not use too strong language when we say 
that this man’s testimony is unworthy of consideration, and 
that all of the testimony that is grounded on it falls with it. 


161 


The witness John L. Williams for the defendant, was not 
willing to follow Mr. Hale in all of his conclusions, and was 
forced to admit that if he found the marked line, and was 
sure of the marks being State line marks, and they were along 
Slick Rock Creek and the spur from Big Fodder Stack and 
State Ridge, these together with the notes of Davenport and 
the map of 1821 would have forced him to conclude that the 
North Carolina contention was correct. 


TRADITION. 


The land district in Tennessee in the neighborhood of the 
Slick Roek Creek contention, was called the Ocoee Land 
District, and in 1837, by legislative direction, the Commis- 
sioners of that land district sectionized it, and according to 
the map that they filed, which is in evidence (Record, 88) 
Slick Rock Creek was the eastern boundary of Monroe 
County, Tennessee, and the Ocoee Land District at that 
point. 

Some evidence was given for the defendant, that although 
the Commissioners of that district filed this map as the ofh- 
cial record of the district, yet in fact they did not intend to 
make Slick Rock Creek the eastern boundary lne. The 
idea was that the land over to the eastward was very wild 
and uninhabited, and they were tired out and they simply 
located it over and intended the Hangover Ridge for the east- 
ern line. But the fact remains that according to the docu- 
ments that they filed publicly they did not so lay it down. 
This fact was considered by both Courts that decided the 
ease of Hebard v. Belding, as having considerable weight 
and did not seem to pay any attention to this explanation, 
and in fact, the referee in his case said that the reasons 
given were not satisfactory to him. 

The Court in the Hebard case also noticed the fact that 
from about that time on until about 1882, there was a tradi- 
tion that Shek Rock Creek was the dividing line, but seemed 
to think that it was engendered by the Ocoee Land District 
map. With all due deference to the Court, we think that 


2780---11 


162 


that is an error, and that the map itself so fixed the line on 
account rather of the tradition than vice versa; and in fact, 
at about that time, in 1837, there must have been a consider- 
able number of people living who knew where the line had 
been located, and when papers were in existence which au- 
thenticated that knowledge. In other words, that the tra- 
dition and the map were the product of a knowledge that the 
line was located on Slick Rock Creek. 

The parties who are interested in the lands in the Slick 
Rock Basin under grants from the State of North Carolina 
paid taxes to that State from the year 1860 (see stipulation, 
record, 782), and Judge Clark in the original opinion in 
the Circuit Court in the Hebard v. Belding case, stated that 
the occupation by them and the payment of taxes, and the 
Ocoee Land District map, might have created an estoppel, 
but that the State of Tennessee could not be estopped. That 
was true in an action between private parties, but in a case 
like this of original jurisdiction, where a State can be sued 
without the leave or license of the State itself, would not the 
doctrine of estoppel apply? In other words, in a case where 
a State may be sued, even against its will, is it not the fact 
that the ordniary rules of law must be applied, as in private 
litigations? This would seem to necessarily follow, because 
the freedom from estoppel arises from the same principle that 
governs the freedom from being brought into court to defend 
an action, but after all it is not a question of estoppel. 

Those matters were only sought to be used in that case as 
cogent evidence that the State of North Carolina was correct, 
and of that fact they are evidence. 

In the Hebard case, the Court of Appeals also decided that 
the evidence as to the declarations of old residents, both of 
Tennessee and North Carolina, were admissible on the point 
of the location of the line. Commencing on page 155 of the 
record and extending to the commencement of the testimony 
of D. b. Burns, on page 226, there is the testimony of a large 
number of witnesses, who heard old residents who knew about 
the location of the State line declare where it was. 

The first one is N. G. Phillips, who knew one Thomas C. 
Tatham very well, who at the time of the giving of the testi- 


165 


mony had been dead a good many years. That Tatham had 
declared to him long before any litigation arose over it, that 
he was with the Commissioners and that the State line ran 
up the Slick Rock Creek and then up a ridge and over the 
sig Fodder Stack, and on page 157 that he explained exactly 
how they got across the river, and that Piercey, an old 
county surveyor of Cherokee County, was so told and had al- 
ways acted on it. That he had heard other men (giving their 
names), say the same things On page 159 that that was the 
general reputation. And on that page, and page 161, says 
that the Tennessee contention was never talked about until 
about fifteen years before that, and that Graham County had 
exercised jurisdiction over that whole territory. 

William Jenkins (Record, 165) talked to a man by the 
name of Foster, who was with the Commissioners, and who 
stated the same location and located the line along the State 
Ridge also. 

David A. Hyde (Record, 169) knew Tatham and heard 
him tell Piercey that the State line was up Slick Rock Creek 
and over the Fodder Stack. This was in 1855. 

N. F. Cooper (Record, 172) heard various old citizens 
long since dead, say the same. 

Ropetwister (Record, 174) heard it described by old citi- 
zens and also states that the Cheoah River was known by that 
name when he was a boy. | 

Willham Williams heard the same from old citizens and 
says that the line was never in dispute until about fifteen 
years ago. Many of those whom he had heard were citizens 
of Tennessee. And, on page 182, he says he heard Levi Mash- 
burn talk the same way. This Mashburn was with the Com- 
missioners. 

James Williams heard the same. 

W. P. Taylor (Record, 186) knew Tatham well and 
Tatham told him the same, and others. 

V. E. Grant (Record, 190) tells the same story. 

E. W. Harrison (Record, 196) gives instance of where 
old people had told him the same. 

O. P. Williams says the same. 


164 


Commencing on page 204, the same evidence of tradition 
with regard to the Tellico dispute is gone into, and the old 
people fixed that upon the State Ridge. | 

John Dockery heard old Billy Graves and old Bill Allen 
speak of the State Ridge as the line, and that the State Ridge 
had that name from the time he was a boy. He was then 
seventy-four years of age. Both Graves and Allen said they 
were along with the Commissioners and he never heard the 
line disputed until Fain got into litigation about it. 

EK. R. Hunsucker (Record, 219) had known the State 
Ridge by that name fifty or sixty years. Knew William 
Graves well, who told him that he was with the Commission- 
ers; that they crossed Tellico and that State Ridge was the 
line. 

Isaac Lovingood (Record, 221) says substantially the same 

thing. : 
D. W. DeWeese knew Graves very well, who said he was 
with the Commissioners and he pointed out the line to this 
witness on the State Ridge. That he had known the State 
Ridge by that name for sixty years. 

Many of these witnesses speak of the payment of taxes to 
the State of North Carolina, service of writs issued by the 
courts of North Carolina in the disputed territory, and the 
fact that the children went to school in North Carolina, and 
especially down on the Slick Rock disputed grounds, the fact 
that many Tennesseeans evaded the justice of Tennessee by 
running across Slick Rock Creek and locating. 

Commencing on page 863 and continuing to page 886, will 
be found the testimony of Dare Orr, Samuel Sneed, J. S. 
Maroney, Samuel Henry, J. W. Patten, James McDaniel, 
John Dockery, N. L. Brittain, James Whitaker, W. P. Jones, 
W. P. Phillips, Stephen Whitaker, C. C. Jones and R. B. 
Mashburn, all to the same effect. 

Commencing on page 1352, there are more who have testi- 
fied for the defendant; also on 937, 964, and from 981 to 991 
and on 1027 to 1029 and 1077. But we believe that it is quite 
evident that these witnesses have confused the later tradition, 
which is mentioned in the decision of the Cireuit Court of 


165 


Appeals in the case of Hebard v. Belding, where they say 
that after 1882 the tradition became divided. There are 
none of the detendant’s witnesses who speak of having heard 
of the location of the State line from any persons who were 
present when it was located. For these reasons we do not 
hesitate to claim for the evidence of that character for the 
complainant much more weight than the testimony of the de- 
fendant’s witnesses is entitled to, and feel that the evidence 
of tradition is strongly corroborative of all the other evidence 
in the case for the complainant. 

In connection with the above, the vast number of grants 
and entries in the State of North Carolina, mentioning the 
Slick Rock Creek as the State line, and other grants around 
the waters of the Tellico River, which entries and grants ex- 
tend from pages 89 to 154 of the printed record, and the fact 
that no Tennessee grants or entries were ever made until 
1882 that extended to the eastward of Slick Rock Creek, form 
a part of the traditionary evidence. 

Respectfully submitted, 
Txos. ‘W. BicKkert, 
Attorney-General of North Carolina. 
THro. F. Davinson, 
C. B. Marruews, 


Of Counsel. 


EDWARDS & BROUGHTON PRINTING CO., RALEIGH, N C 


AUR (At. Wr CET ST 


